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Amendments to criminal case jury instructions.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases has submitted to the Florida Supreme Court a report proposing amendments to jury instructions 25.2 (Sale, Purchase, Manufacture, Delivery or Possession with Intent to Sell, Purchase, Manufacture, or Deliver); 25.3 (Sale, Purchase, Delivery, or Possession in Excess of Ten Grams); 25.4 (Delivery of a Controlled Substance to or Use of Minor); 25.5 (Bringing a Controlled Substance into the State); 25.6 (Sell, Manufacture, Deliver, or Possession with Intent to Sell, Manufacture or Deliver a Controlled Substance in Specified Locations); 25.7 (Possession of a Controlled Substance); 25.8 (Obtaining a Controlled Substance by Fraud, Etc.); 25.9 (Trafficking in Cannabis); 25.10 (Trafficking in Cocaine); 25.11 (Trafficking in [Morphine] [Opium] [Oxycodone] [Hydrocodone] [Hydromorphone] [Heroin] [(Specified Substance Alleged)]); 25.12 (Trafficking in Phencyclidine); 25.13 (Trafficking in Methaqualone); 25.14 (Use or Possession With Intent to Use Drug Paraphernalia); 25.15 (Delivery, Possession with Intent to Deliver, or Manufacture with Intent to Deliver Drug Paraphernalia); 25.16 (Delivery of Drug Paraphernalia to a Minor); 25.17 (Contraband in County Detention Facility); 25.18 (Contraband in Juvenile [Detention Facility] [Commitment Program]); 25.20 (Possession of Contraband [in] [upon the] Grounds of a State Correctional Facility); and 25.21 ([Introduction] [Removal] of Contraband [Into] [From] a State Correctional Institution). The court invites all interested persons to comment on the committee's proposals, which are reproduced in full below, as well as online at www.floridasupremecourt. org/decisions/proposed.shtml. All comments must be filed with the court on or before January 14, 2014, with a certificate of service verifying that a copy has been served on Criminal Instructions Committee Chair Judge Joseph Anthony Bulone, c/o Bart Schneider, Office of the General Counsel, 500 S. Duval Street, Tallahassee 32399-1925, schneidb@flcourts.org. A separate request for oral argument should accompany the comment if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The chair has until February 4, 2014, to file a response to any comments filed with the court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Portal in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e-mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee 32399-1927; no additional copies are required or will be accepted.

IN THE SUPREME COURT OF FLORIDA

IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES--REPORT NO. 2013-05, CASE NO. SC13-1733

25.2 [begin strikethrough]DRUG ADUSE[end strikethrough]--SALE, PURCHASE, MANUFACTURE, DELIVERY, OR POSSESSION WITH INTENT TO SELL, PURCHASE, MANUFACTURE, OR DELIVER

[section] 893.13(1)(a) and(2)(a), Fla. Stat.

Certain drugs and chemical substances are by law known as "controlled substances." (Specific substance alleged) is a controlled substance.

To prove the crime of (crime charged), the State must prove the following (applicable number) elements beyond a reasonable doubt:

1. (Defendant) [sold] [manufactured] [delivered] [purchased] [possessed with intent to [sell] [manufacture] [deliver] [purchase]] a certain substance.

[begin strikethrough][sold][end strikethrough]

[begin strikethrough][purchased][end strikethrough]

[begin strikethrough][manufactured][end strikethrough]

[begin strikethrough][delivered][end strikethrough]

[begin strikethrough][possessed with intent to sell][end strikethrough]

[begin strikethrough][possessed with intent to purchase][end strikethrough]

[begin strikethrough][possessed with intent to manufacture][end strikethrough]

[begin strikethrough][possessed with intent to deliver] a certain substance.[end strikethrough]

2. The substance was (specific substance alleged).

Give element #3 if P[begin strikethrough]p[end strikethrough]ossession With Intent to either Sell, Purchase, Manufacture or Deliver is charged.

It is unclear whether element #3 must be given for Sale, Manufacture, Delivery, or Purchase of a Controlled Substance. See Comment section.

3. (Defendant) had knowledge of the presence of the substance.

Delivery of 20 Grams or Less of Cannabis without consideration is a misdemeanor. See [section] 893.13(3), Fla. Stat. If the State charges the felony of Delivery of More Than 20 Grams of Cannabis, the jury must make a finding as to the weight.

3. or 4. The cannabis weighed more than 20 grams.

Definitions. Give as applicable.

Cannabis. [section][section][section] 893.02(3); 893.13(3); 893.13(6)(b), Fla. Stats.

Cannabis means all parts of any plant of the genus Cannabis, whether growing or not and the seeds thereof.

Sell.

"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.

Manufacture. [section] 893.02(13)(a), Fla. Stat.

"Manufacture" means the production, preparation, packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis. It can also be by a combination of extraction and chemical synthesis.

Deliver. [section] 893.02(5), Fla. Stat.

"Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

Possession.

[begin strikethrough]To "possess" means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed.[end strikethrough]

[begin strikethrough]Possession may be actual or constructive.[end strikethrough]

There are two ways to exercise control: actual possession and constructive possession.

Actual possession.

Actual possession means the person is aware of the presence of the substance and:

a. The [begin strikethrough]controlled[end strikethrough] substance is in the hand of or on the person, or

b. The [begin strikethrough]controlled[end strikethrough] substance is in a container in the hand of or on the person, or

c. The [begin strikethrough]controlled[end strikethrough] substance is so close as to be within ready reach and is under the control of the person.

[begin strikethrough]Give if applicable.[end strikethrough]

[begin strikethrough]Mere proximity to a controlled substance is not sufficient to establish control over that controlled substance when it is not in a place over which the person has control.[end strikethrough]

Constructive possession.

Constructive possession means the person is aware of the presence of the substance, the [begin strikethrough]controlled[end strikethrough] substance is in a place over which the [begin strikethrough](defendant)[end strikethrough] person has control, and the person has the ability to control the substance [begin strikethrough]or in which the (defendant) has concealed it[end strikethrough].

Give if applicable.

Mere proximity to a substance is not sufficient to establish control over that substance when the substance is in a place that the person does not control.

Give if applicable.

In order to establish (defendant's) constructive possession of a [begin strikethrough]controlled[end strikethrough] substance [begin strikethrough]if the controlled substance[end strikethrough] that was [begin strikethrough]is[end strikethrough] in a place [begin strikethrough]over which the (defendant)[end strikethrough] [he] [she] [begin strikethrough]does[end strikethrough] did not [begin strikethrough]have[end strikethrough] control, the State must prove [begin strikethrough]the[end strikethrough]_(defendant[begin strikethrough]'s[end strikethrough]) (1) knew that the substance was within [his] [her] presence [begin strikethrough]has the control over the controlled substance[end strikethrough] and (2) [begin strikethrough]knowledge that the controlled substance substance was within the (defendant's) presence[end strikethrough] exercised control or ownership over the substance itself.

Joint possession.

Possession of a substance may be sole or joint, that is, two or more persons may be aware of the presence of the substance and may jointly [begin strikethrough]possess an article, exercising[end strikethrough] exercise control over it. In that case, each of those persons is considered to be in possession of [begin strikethrough]that article[end strikethrough] the substance.

[begin strikethrough]If a person has exclusive possession of a controlled substance, knowledge of its presence may be inferred or assumed.[end strikethrough]

[begin strikethrough]If a person does not have exclusive possession of a controlled substance, knowledge of its presence may not be inferred or assumed.[end strikethrough]

Inferences.

Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).

You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).

If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his] [her] control, [or]

c. had exclusive control of the place where the substance was located, you may infer that [he] [she] was aware of the presence of the substance and had the ability to control it.

If (defendant) did not have exclusive control over the place where a substance was located, you may not infer [he] [[she] had knowledge of the presence of the substance or the ability to control it, in the absence of other incriminating evidence.

Give if applicable. See Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).

However, you may infer that (defendant) knew of the presence of the substance and had the ability to control it if [he] [she] had joint control over the place where the substance was located, and the substance was located in a common area in plain view and in the presence of the defendant.

[begin strikethrough]Knowledge of the illicit nature of the controlled substance.[end strikethrough] Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. [section] 893.101(2) and (3), Fla. Stat.

[begin strikethrough]Knowledge of the illicit nature of the controlled substance is not an element of the offense of (insert name of offense charged)[end strikethrough]. Lack of knowledge of the illicit nature of a controlled substance is [begin strikethrough]an affirmative[end strikethrough] defense to (crime charged). (Defendant) has raised this is [begin strikethrough]affirmative[end strikethrough] defense. [begin strikethrough]However, y[end strikethrough]

You are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that [begin strikethrough](defendant)[end strikethrough] [he] [she] knew of the presence of the controlled substance and exercised control or ownership over the substance. [begin strikethrough]was

in actual or constructive possession of the controlled substance.[end strikethrough]

If [begin strikethrough]from the evidence[end strikethrough] you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find [begin strikethrough](defendant)[end strikethrough] [him] [her] guilty of (crime charged).

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [begin strikethrough](defendant)[end strikethrough] [him] [her] not guilty of (crime charged).

Lesser Included Offenses
SALE, PURCHASE, MANUFACTURE, DELIVERY OR POSSESSION WITH INTENT--
893.13(1)(a) and (2)(a)

CATEGORY ONE          CATEGORY TWO          FLA. STAT.            INS.
                                                                  NO.

[begin                                      893.13(6)             25.7
strikethrough]None
[end strikethrough]
Possession of a
Controlled
Substance, if
Possession With
Intent is charged

Delivery of 20                              893.13(3)             25.2
Grams or Less of
Cannabis if
Delivery of More
than 20 Grams
of Cannabis
is charged

                      Attempt, except       777.04(1)             5.1
                      when delivery is
                      charged

                      [begin                [begin
                      strikethrough]If      strikethrough]
                      delivery of           893.13(3)
                      cannabis is charged   [end strikethrough]
                      [end strikethrough]

                      [begin                [begin
                      strikethrough]If      strikethrough]
                      possession of         893.13(6)(b)
                      cannabis is charged   [end strikethrough]
                      [end strikethrough]

                      [begin                [begin
                      strikethrough]If      strikethrough]
                      possession is         893.13(6)(a)
                      charged and offense   [end strikethrough]
                      would be a second
                      degree felony under
                      893.13(1)(a)1[end
                      strikethrough]


Comment

Unlike the trafficking statutes, the statutes for these crimes do not contain the word "knowingly." Also, the affirmative defense statute of [section] 893.101 Fla. Stat. addresses only "knowledge of illicit nature" and not "knowledge of presence." Because of case law, "knowledge of presence" is an element of possession, which is why element #3 must be given if the defendant is charged with any type of Possession with Intent. See State v. Oxx, 417 So. 2d 287 (Fla. 5th DCA 1982). However, there is an absence of case law as to whether "knowledge of presence" is an element of Sale, Manufacture, Delivery or Purchase of a Controlled Substance, or whether "lack of knowledge of presence" is an affirmative defense. In the absence of case law, trial judges must decide this issue.

If the State alleges the defendant possessed cannabis, in an amount more than 20 grams, with intent to sell, purchase, deliver, or manufacture the cannabis, there will be both a felony necessary lesser-included offense of simple possession and a misdemeanor lesser-included offense of simple possession. See [begin strikethrough]Note [section][end strikethrough] [section] [begin strikethrough]893.13(3) and[end strikethrough] 893.13(6)(b), Fla. Stat., [begin strikethrough]if the charge involves possession or delivery without consideration of not more than 20 grams of cannabis.[end strikethrough]

If the State alleges the defendant possessed a controlled substance listed in [section] 893.03(1)(c)46.-50., 114.-142., 151.-159, or 166.-169., in an amount more than 3 grams, there will be both a felony necessary lesser-included offense of simple possession and a misdemeanor necessary lesser-included offense of simple possession. See [section] 893.13(6)(b).

There is no crime of Attempted Delivery because the definition of "delivery" in [section] 893.03(6) Fla. Stat. includes the attempt to transfer from one person to another.

This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], [begin strikethrough]and[end strikethrough] 2007 [969 So. 2d 245] and 2013. [begin strikethrough]See also SC03-629 [869 So. 2d 1205 (Fla. 2004)][end strikethrough].

25.3 [begin strikethrough]DRUG ABUSE-[end strikethrough] SALE, PURCHASE, DELIVERY, OR POSSESSION IN EXCESS OF TEN GRAMS

[section] 893.13(1)(b), (2)(b), and (6)(c), Fla. Stat.

This instruction will have to be altered if a combination of substances is alleged.

Certain drugs and chemical substances are by law known as "controlled substances." (Specific substance alleged) is a controlled substance.

To prove the crime of (crime charged), the State must prove the following (applicable number) elements beyond a reasonable doubt:

1. (Defendant) [sold] [purchased] [delivered] [possessed] a certain substance that weighed more than 10 grams.

[begin strikethrough][sold][end strikethrough]

[begin strikethrough][purchased][end strikethrough]

[begin strikethrough][delivered][end strikethrough]

[begin strikethrough][possessed][end strikethrough]

[begin strikethrough]more than 10 grams of a certain substance.[end strikethrough]

2. The substance was (specific substance alleged).

Give element #3 if possession is charged. It is unclear whether element #3 must be given for Sale, Purchase, or Delivery of a Controlled Substance. See comment section.

3. (Defendant) had knowledge of the presence of the substance.

Definitions. Give as applicable.

Sell.

"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.

Deliver. [section] 893.02(5), Fla. Stat.

"Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

Possession.

[begin strikethrough]To "possess" means to have personal charge of or exercise the right of owner ship, management, or control over the thing possessed[end strikethrough]

[begin strikethrough]Possession may be actual or constructive.[end strikethrough]

There are two ways to exercise control: actual possession and constructive possession.

Actual possession.

Actual possession means the person is aware of the presence of the substance and:

a. The [begin strikethrough]controlled[end strikethrough] substance is in the hand of or on the person, or

b. The [begin strikethrough]controlled[end strikethrough] substance is in a container in the hand of or on the person, or

c. The [begin strikethrough]controlled[end strikethrough] substance is so close as to be within ready reach and is under the control of the person.

[begin strikethrough]Give if applicable.[end strikethrough]

[begin strikethrough]Mere proximity to a controlled substance is not sufficient to establish control over that controlled substance when it is not in a place over which the person has control.[end strikethrough]

Constructive possession.

Constructive possession means the person is aware of the presence of the substance, the [begin strikethrough]controlled[end strikethrough] substance is in a place over which the [begin strikethrough](defendant)[end strikethrough] person has control, and the person has the ability to control the substance [begin strikethrough]or in which the (defendant) has concealed it.[end strikethrough]

Give if applicable.

Mere proximity to a substance is not sufficient to establish control over that substance when the substance is in a place that the person does not control.

Give if applicable.

In order to establish (defendant's) constructive possession of a [begin strikethrough]controlled[end strikethrough] substance [begin strikethrough]if the controlled[end strikethrough] [begin strikethrough]substance[end strikethrough] that was [begin strikethrough]is[end strikethrough] in a place [begin strikethrough]over which the (defendant)[end strikethrough] [he] [she] [begin strikethrough]does[end strikethrough] did not [begin strikethrough]have[end strikethrough] control, the State must prove [begin strikethrough]the[end strikethrough]_(defendant[begin strikethrough]'s[end strikethrough]) (1) knew that the substance was within [his] [her] presence [begin strikethrough]has the control over the controlled substance[end strikethrough] and (2) [begin strikethrough]knowledge that the controlled substance was within the (defendant's) presence[end strikethrough] exercised control or ownership over the substance itself.

Joint possession.

Possession of a substance may be sole or joint, that is, two or more persons may be aware of the presence of the substance and may jointly [begin strikethrough]possess an article, exercising[end strikethrough] exercise control over it. In that case, each of those persons is considered to be in possession of [begin strikethrough]that article[end strikethrough] the substance

[begin strikethrough]If a person has exclusive possession of a controlled substance, knowledge of its presence may be inferred or assumed.[end strikethrough]

[begin strikethrough]If a person does not have exclusive possession of a controlled substance, knowledge of its presence may not be inferred or assumed. [end strikethrough]

Inferences.

Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).

You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).

If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his] [her] control, [or]

c. had exclusive control of the place where the substance was located, you may infer that [he] [she] was aware of the presence of the substance and had the ability to control it.

If (defendant) did not have exclusive control over the place where a substance was located, you may not infer [he] [[she] had knowledge of the presence of the substance or the ability to control it, in the absence of other incriminating evidence.

Give if applicable. See Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).

However, you may infer that (defendant) knew of the presence of the substance and had the ability to control it if [he] [she] had joint control over the place where the substance was located, and the substance was located in a common area in plain view and in the presence of the defendant.

[begin strikethrough]Knowledge of the illicit nature of the controlled substance.[end strikethrough] Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. [section] 893.101(2) and (3), Fla. Stat.

[begin strikethrough]Knowledge of the illicit nature of the controlled substance is not an element of the offense of (insert name of offense charged).[end strikethrough] Lack of knowledge of the illicit nature of a controlled substance is a[begin strikethrough]n affirmative[end strikethrough] defense to (crime charged). (Defendant) has raised this [begin strikethrough]affirmative[end strikethrough] defense. [begin strikethrough]However, y[end strikethrough]

You are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that [begin strikethrough](defendant)[end strikethrough] [he] [she] knew of the presence of the controlled substance and exercised control or ownership over the substance. [begin strikethrough]was in actual or constructive possession of the controlled substance.[end strikethrough]

If [begin strikethrough]from the evidence[end strikethrough] you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find [begin strikethrough](defendant)[end strikethrough] [him] [her] guilty of (crime charged).

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [begin strikethrough](defendant)[end strikethrough] [him][her] not guilty of (crime charged).

Lesser Included Offenses
SALE, PURCHASE, DELIVERY, OR POSSESSION [begin strikethrough]OF MORE
THAN[end strikethrough] IN EXCESS OF 10 GRAMS--893.13(1)(b), (2)(b),
and (6)(c)

CATEGORY ONE                  CATEGORY TWO       FLA. STAT.       INS.
                                                                  NO.

Sale, purchase, or delivery                      893.13(1)(a)     25.2
of controlled substance if                       and (2)(a)
sale, purchase, or delivery
is charged

Possession of a controlled                       893.13(6)        25.7
substance, if possession is
charged                       Attempt, except    777.04(1)        5.1
                              when delivery is
                              charged

                              [begin             [begin
                              strikethrough]If   strikethrough]
                              possession is      893.13(6)(a)
                              charged[end        [end
                              strikethrough]     strikethrough]


Comment

Unlike the trafficking statutes, the statutes for these crimes do not contain the word "knowingly." Also, the affirmative defense statute of [section] 893.101 Fla. Stat. addresses only "knowledge of illicit nature" and not "knowledge of presence." Because of case law, "knowledge of presence" is an element of possession, which is why element #3 must be given if the defendant is charged with Possession of a Controlled Substance. See State v. Oxx, 417 So. 2d 287 (Fla. 5th DCA 1982). However, there is an absence of case law as to whether "knowledge of presence" is an element of Sale, Delivery, or Purchase of a Controlled Substance, or whether "lack of knowledge of presence" is an affirmative defense. In the absence of case law, trial judges must decide this issue.

There is no crime of Attempted Delivery because the definition of "delivery" in [section] 893.03(6) Fla. Stat. includes the attempt to transfer from one person to another.

This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], [begin strikethrough]and[end strikethrough]-2007 [969 So. 2d 245] and 2013. [begin strikethrough]See also SC03-629 [869 So. 2d 1205 (Fla. 2004)].[end strikethrough]

25.4 [begin strikethrough]DRUG ABUSE[end strikethrough]--DELIVERY OF A CONTROLLED SUBSTANCE TO OR USE OF MINOR [section] 893.13(4), Fla. Stat.

Certain drugs and chemical substances are by law known as "controlled substances." (Specific substance alleged) is a controlled substance.

To prove the crime of (crime charged), the State must prove the following [three] [four] elements beyond a reasonable doubt:

Give 1a, 1b, or 1c as applicable.

1. a. [begin strikethrough][[end strikethrough](Defendant) delivered a certain substance to a person under the age of 18 years. [begin strikethrough]][end strikethrough]

b. [begin strikethrough][[end strikethrough] (Defendant) used or hired a person under the age of 18 years as an agent or employee in the sale or delivery of a certain substance.[begin strikethrough]][end strikethrough]

c. [begin strikethrough][[end strikethrough] (Defendant) used a person under the age of 18 years to assist in avoiding detection or apprehension for (violation of chapter 893, Fla. Stat., alleged).[begin strikethrough]][end strikethrough]

2. The substance was (specific substance alleged).

3. (Defendant) was 18 years of age or older at the time. It is unclear whether element #4 must be given for Delivery of a Controlled Substance. See Comment section.

4. (Defendant) had knowledge of the presence of the substance. Definition.

Deliver. [section] 893.02(5), Fla. Stat.

"Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

[begin strikethrough]Knowledge of the illicit nature of the controlled substance[end strikethrough]. Affirmative defense: Lack of knowledge of illicit nature. Give if applicable.[section] 893.101(2) and (3), Fla. Stat.

[begin strikethrough]Knowledge of the illicit nature of the controlled substance is not an element of the offense of (insert name of offense charged).[end strikethrough] Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to (crime charged). (Defendant) has raised this [begin strikethrough]affirmative[end strikethrough] defense. [begin strikethrough]However, y[end strikethrough]

You are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that [begin strikethrough](defendant)[end strikethrough] [he] [she] knew of the presence of the controlled substance and exercised control or ownership over the substance. [begin strikethrough]was in actual or constructive possession of the controlled substance.[end strikethrough]

If [begin strikethrough]from the evidence[end strikethrough] you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find [begin strikethrough](defendant)[end strikethrough] [him] [her] guilty of (crime charged).

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [begin strikethrough](defendant)[end strikethrough] [him] [her] not guilty of (crime charged).
DELIVERY OF A CONTROLLED SUBSTANCE TO OR USE OF A MINOR--893.13(4)

CATEGORY ONE         CATEGORY TWO      FLA. STAT.       INS. NO.

[begin                                 893.13(1)(a)     25.2
strikethrough]
Sale, manufacture,
delivery, etc.[end
strikethrough]
Delivery of a
Controlled
Substance

                     [begin            [begin           [begin
                     strikethrough]    strikethrough]   strikethrough]
                     Attempt, except   777.04(1)[end    5.1[begin
                     when delivery     strikethrough]   strikethrough]
                     is charged[end
                     strikethrough]

                     [begin            [begin
                     strikethrough]    strikethrough]
                     If possession     893.13(6)(a)
                     is charged and    [end
                     the offense       strikethrough]
                     would be a
                     second degree
                     felony under
                     893.13(1)(a)1
                     [end
                     strikethrough]

                     [begin            [begin
                     strikethrough]    strikethrough]
                     If possession     893.13(6)(b)
                     of cannabis is    [end
                     charged[end       strikethrough]
                     strikethrough]

                     [begin            [begin
                     strikethrough]    strikethrough]
                     If delivery of    893.13(3)[end
                     cannabis is       strikethrough]
                     charged[end
                     strikethrough]


Comment

Unlike the trafficking statutes, this statute does not contain the word "knowingly." Also, the affirmative defense statute of [section] 893.101 Fla. Stat. addresses only "knowledge of illicit nature" and not "knowledge of presence." Because of case law, "knowledge of presence" is an element of possession, which is why element #4 must be given if a defendant is charged with any type of Possession of a Controlled Substance. See State v. Oxx, 417 So. 2d 287 (Fla. 5th DCA 1982). However, there is an absence of case law as to whether "knowledge of presence" is an element of Delivery of a Controlled Substance or whether "lack of knowledge of presence" is an affirmative defense. In the absence of case law, trial judges must decide this issue.

There is no crime of Attempted Delivery because the definition of "delivery" in [section] 893.03(6) Fla. Stat. includes the attempt to transfer from one person to another.

This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], [begin strikethrough]and[end strikethrough] 2007 [969 So. 2d 245] and 2013. [begin strikethrough]See also SC03-629 [869 So. 2d 1205 (Fla. 2004)]. [end strikethrough]

25.5 [begin strikethrough]DRUG ABUSE-[end strikethrough] BRINGING A CONTROLLED SUBSTANCE INTO THE STATE

[section] 893.13(5), Fla. Stat.

Certain drugs and chemical substances are by law known as "controlled substances." (Specific substance alleged) is a controlled substance.

To prove the crime of [begin strikethrough](crime charged)[end strikethrough] Bringing a Controlled Substance Into the State, the State must prove the following [two] [three] elements beyond a reasonable doubt:

1. (Defendant) brought a certain substance into Florida.

2. The substance was (specific substance alleged).

It is unclear whether element #3 must be given. See Comment section.

3. (Defendant) had knowledge of the presence of the substance.

[begin strikethrough]Definition.[end strikethrough]

[begin strikethrough]Possession.[end strikethrough]

[begin strikethrough]To "possess" means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed.[end strikethrough]

[begin strikethrough]Possession may be actual or constructive.[end strikethrough]

[begin strikethrough]Actual possession means:[end strikethrough]

[begin strikethrough]a. the controlled substance is in the hand of or on the person, or[end strikethrough]

[begin strikethrough]b. the controlled substance is in a container in the hand of or on the person, or[end strikethrough]

[begin strikethrough]c. the controlled substance is so close as to be within ready reach and is under the control of the person.[end strikethrough]

[begin strikethrough]Give if applicable.[end strikethrough]

[begin strikethrough]Mere proximity to a controlled substance is not sufficient to establish control over that controlled substance when it is not in a place over which the person has control.[end strikethrough]

[begin strikethrough]Constructive possession means the controlled substance is in a place over which the (defendant) has control, or in which the (defendant) has concealed it.[end strikethrough]

[begin strikethrough]In order to establish constructive possession of a controlled substance if the controlled substance is in a place over which the (defendant) does not have control, the State must prove the (defendant's) (1) control over the controlled substance and (2) knowledge that the controlled substance was within the (defendant's) presence.[end strikethrough]

[begin strikethrough]Possession may be joint, that is, two or more persons may jointly possess an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article.[end strikethrough]

[begin strikethrough]If a person has exclusive possession of a controlled substance, knowledge of its presence may be inferred or assumed.[end strikethrough]

[begin strikethrough]If a person does not have exclusive possession of a controlled substance, knowledge of its presence may not be inferred or assumed.[end strikethrough]

[begin strikethrough]Knowledge of the illicit nature of the controlled substance.[end strikethrough] Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. [section] 893.101(2) and (3), Fla. Stat.

[begin strikethrough]Knowledge of the illicit nature of the controlled substance is not an element of the offense of (insert name of offense charged).[end strikethrough] Lack of knowledge of the illicit nature of a controlled substance is a[begin strikethrough]n affirmative[end strikethrough] defense to Bringing a Controlled Substance Into the State. (Defendant) has raised this [begin strikethrough]affirmative[end strikethrough] defense. [begin strikethrough]However, y[end strikethrough]

You are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that [begin strikethrough](defendant)[end strikethrough] [he] [she] knew of the presence of the controlled substance and exercised control or ownership over the substance. [begin strikethrough]was in actual or constructive possession of the controlled substance.[end strikethrough]

If [begin strikethrough]from the evidence[end strikethrough] you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find [begin strikethrough](defendant)[end strikethrough] [him][her] guilty of Bringing a Controlled Substance Into the State.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [begin strikethrough](defendant)[end strikethrough] [him] [her] not guilty of Bringing a Controlled Substance Into the State.

Lesser Included Offenses:
BRINGING A CONTROLLED SUBSTANCE INTO THE STATE--893.13(5)

CATEGORY ONE       CATEGORY TWO      FLA. STAT.        INS. NO.

[begin                               893.13(1)(a)      [begin
strikethrough]                                         strikethrough]
Sale,                                                  25.2[end
manufacture,                                           strikethrough]
delivery, etc.
[end
strikethrough]
                   Attempt[begin     777.04(1)         5.1
                   strikethrough],
                   except when
                   delivery is
                   charged[end
                   strikethrough]

                   [begin            [begin
                   strikethrough]    strikethrough]
                   If possession     893.13(6)(a)
                   is charged and    [end
                   the offense       strikethrough]
                   would be a
                   second degree
                   felony under
                   893.13(1)(a)1
                   [end
                   strikethrough]

                   [begin            [begin
                   strikethrough]    strikethrough]
                   If possession     893.13(6)(b)
                   of cannabis is    [end
                   charged[end       strikethrough]
                   strikethrough]

                   [begin            [begin
                   strikethrough]    strikethrough]
                   If delivery of    893.13(3)[end
                   cannabis is       strikethrough]
                   charged[end
                   strikethrough]


Comment

Unlike the trafficking statutes, the statute for this crime does not contain the word "knowingly." Also, the affirmative defense statute of [section] 893.101 Fla. Stat. addresses only "knowledge of illicit nature" and not "knowledge of presence." Because of case law, "knowledge of presence" is an element of possession, which is why element #3 must be given if the defendant is charged with any type of Possession of a Controlled Substance. See State v. Oxx, 417 So. 2d 287 (Fla. 5th DCA 1982). However, there is an absence of case law as to whether "knowledge of presence" is an element of Bringing a Controlled Substance into the State or whether "lack of knowledge of presence" is an affirmative defense. In the absence of case law, trial judges must decide this issue.

This instruction was adopted in 1981 and amended in 1997 [697 So. 2d 84] [begin strikethrough]and[end strikethrough] 2007 [969 So. 2d 245], and 2013. [begin strikethrough]See also SC03-629 [869 So. 2d 1205 (Fla. 2004)]. [end strikethrough]

25.6 [begin strikethrough]DRUG ABUSE--CONTRABAND[end strikethrough] SELL, MANUFACTURE, DELIVER, OR POSSESSION WITH INTENT TO SELL, MANUFACTURE OR DELIVER A CONTROLLED SUBSTANCE IN SPECIFIED LOCATIONS

[section] 893.13(1)(c)--(f), and (h) Fla. Stat.

Certain drugs and chemical substances are by law known as "controlled substances." (Specific substance alleged) is a controlled substance.

To prove the crime of (crime charged), the State must prove the following [three] [four] elements beyond a reasonable doubt:

1. (Defendant) [sold] [manufactured] [delivered] [possessed with intent to [sell] [manufacture] [deliver]] a certain substance.

[begin strikethrough][sold][end strikethrough]

[begin strikethrough][manufactured][end strikethrough]

[begin strikethrough][delivered][end strikethrough]

[begin strikethrough][possessed with intent to sell][end strikethrough]

[begin strikethrough][possessed with intent to manufacture][end strikethrough]

[begin strikethrough][possessed with intent to deliver] a certain substance.[end strikethrough]

Give [begin strikethrough]2a, or 2b[end strikethrough] as applicable. [section] 893.13(1)(c)-(f and (h), Fla. Stat.

2. [begin strikethrough]a.[end strikethrough] The [sale] [manufacture] [delivery] [possession with intent to [sell] [manufacture] [deliver]] took place in, on, or within 1,000 feet of:

[the real property comprising a child care facility];

[the real property comprising a public or private [elementary],-[middle] [begin strikethrough]; or[end strikethrough] [secondary] school between the hours of 6:00 a.m. and 12:00 midnight];-.

[the real property comprising [a state, county, or municipal park] [a community center] [a publicly-owned recreational facility];

[the real property comprising a public or private college, university, or other postsecondary educational institution];

[a physical place for worship at which a church or religious organization regularly conducts religious services];

[a convenience business];

[the real property comprising a public housing facility];

[the real property comprising an assisted living facility].

[begin strikethrough][section] 893.13(1)(c-f), Fla. Stat.[end strikethrough]

[begin strikethrough]b. in, on, or within 1000 feet of [the real property comprising a public housing facility] [the real property comprising a public or private college, university, or other postsecondary educational institution] [a state, county or municipal park] [a community center] [a publicly owned recreation facility] [a physical place for worship at which a church or religious organization regularly conducts religious services] [a convenience business].[end strikethrough]

3. The substance was (specific substance alleged).

Give element #4 if Possession With Intent to either Sell, Manufacture or Deliver is charged. It is unclear whether element #4 must be given for Sale, Manufacture, or Delivery of a Controlled Substance. See Comment section.

4. (Defendant) had knowledge of the presence of the substance.

Definitions. Give as applicable.

Sell.

"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.

Manufacture. [section] 893.02(13)(a), Fla. Stat.

"Manufacture" means the production, preparation, packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis. It can also be by a combination of extraction and chemical synthesis.

Deliver. [section] 893.02(5), Fla. Stat.

"Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

Possession.

[begin strikethrough]To "possess" means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed.[end strikethrough]

[begin strikethrough]Possession may be actual or constructive.[end strikethrough]

There are two ways to exercise control: actual possession and constructive possession.

Actual possession.

Actual possession means the person is aware of the presence of the substance and:

a. The [begin strikethrough]controlled[end strikethrough] substance is in the hand of or on the person, or

b. The [begin strikethrough]controlled[end strikethrough] substance is in a container in the hand of or on the person, or

c. The [begin strikethrough]controlled[end strikethrough] substance is so close as to be within ready reach and is under the control of the person.

[begin strikethrough]Give if applicable.[begin strikethrough]

[begin strikethrough]Mere proximity to a controlled substance is not sufficient to establish control over that controlled substance when it is not in a place over which the person has control.[end strikethrough]

Constructive possession.

Constructive possession means the person is aware of the presence of the substance, the [begin strikethrough]controlled[end strikethrough] substance is in a place over which the [begin strikethrough](defendant)[end strikethrough] person has control, and the person has the ability to control the substance [begin strikethrough]or in which the (defendant) has concealed it.[end strikethrough]

Give if applicable.

Mere proximity to a substance is not sufficient to establish control over that substance when the substance is in a place that the person does not control.

Give if applicable.

In order to establish (defendant's) constructive possession of a [begin strikethrough]controlled[end strikethrough] substance [begin strikethrough]if the controlled substance[end strikethrough] that was [begin strikethrough]is[end strikethrough] in a place [begin strikethrough] over which the (defendant)[end strikethrough] [he][she] [begin strikethrough]does[end strikethrough] did not [begin strikethrough]have[end strikethrough] control, the State must prove [begin strikethrough]the[end strikethrough] (defendant[begin strikethrough]'s[end strikethrough]) (1) knew that the substance was within [his] [her] presence [begin strikethrough]has the control over the controlled substance[end strikethrough] and (2) [begin strikethrough]knowledge that the controlled substance was within the (defendant's) presence[end strikethrough] exercised control or ownership over the substance itself.

Joint possession.

Possession of a substance may be sole or joint, that is, two or more persons may be aware of the presence of the substance and may jointly [begin strikethrough]possess an article, exercising[end strikethrough] exercise control over it. In that case, each of those persons is considered to be in possession of [begin strikethrough] that article[end strikethrough] the substance.

[begin strikethrough]If a person has exclusive possession of a controlled substance, knowledge of its presence may be inferred or assumed.[end strikethrough]

[begin strikethrough]If a person does not have exclusive possession of a controlled substance, knowledge of its presence may not be inferred or assumed.[end strikethrough]

Inferences.

Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).

You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).

If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his] [her] control, [or]

c. had exclusive control of the place where the substance was located, you may infer that [he] [she] was aware of the presence of the substance and had the ability to control it.

If (defendant) did not have exclusive control over the place where a substance was located, you may not infer [he] [[she] had knowledge of the presence of the substance or the ability to control it, in the absence of other incriminating evidence.

Give if applicable. See Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).

However, you may infer that (defendant) knew of the presence of the substance and had the ability to control it if [he] [she] had joint control over the place where the substance was located, and the substance was located in a common area in plain view and in the presence of the defendant.

[begin strikethrough]Definitions. Give as applicable.[end strikethrough]

Child care facility. [section] 402.302 Fla. Stat.

"Child care facility" means any child care center or arrangement which provides child care for more than five children unrelated to the operator and which receives a payment, fee, or grant for any of the children receiving care. It does not matter if the child care facility is operated for profit or as a nonprofit operation.

Convenience business. [section] 812.171 Fla. Stat.

A "convenience business" means any place of business that is primarily engaged in the retail sale of groceries, or both groceries and gasoline, and that is open for business at any time between the hours of 11 p.m. and 5 a.m. The term does not include any of the following: a business that is primarily a restaurant, or one that always has at least five employees on the premises after 11 p.m. and before 5 a.m., or one that has at least 10,000 square feet of retail floor space. The term "convenience business" also does not include any business in which the owner or members of [his] [her] family work between the hours of 11 p.m. and 5 a.m.

Real property comprising a public housing facility. [section] 421.03(12) Fla. Stat.

The term "real property comprising a public housing facility" is defined as the real property of a public corporation created as a housing authority by statute.

Community Center. [section] 893.13(1)(c) Fla. Stat.

The term "community center" means a facility operated by a nonprofit community-based organization for the provision of recreational, social, or educational services to the public.

Assisted living facility. [section] 429.02(5) Fla. Stat.

"Assisted living facility" means any building or buildings, section or distinct part of a building, private home, boarding home, home for the aged, or other residential facility, whether operated for profit or not, which undertakes through its ownership or management to provide housing, meals, and one or more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administrator.

[begin strikethrough]Knowledge of the illicit nature of the controlled substance.[end strikethrough] Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. [section] 893.101(2) and (3), Fla. Stat.

[begin strikethrough]Knowledge of the illicit nature of the controlled substance is not an element of the offense of (insert name of offense charged).[end strikethrough] Lack of knowledge of the illicit nature of a controlled substance is a[begin strikethrough]n affirmative[end strikethrough] defense to (crime charged). (Defendant) has raised this [begin strikethrough]affirmative[end strikethrough] defense. [begin strikethrough]However, y[end strikethrough]

You are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that [begin strikethrough](defendant)[end strikethrough] [he] [she] knew of the presence of the controlled substance and exercised control or ownership over the substance. [begin strikethrough]was in actual or constructive possession of the controlled substance.[end strikethrough]

If [begin strikethrough]from the evidence[end strikethrough] you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find [begin strikethrough](defendant)[end strikethrough] [him][her] guilty of (crime charged).

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [begin strikethrough](defendant)[end strikethrough] [him] [her] not guilty of (crime charged).

Lesser Included Offenses

Lesser Included Offenses
[begin strikethrough]DRUG ABUSE--CONTRABAND[end strikethrough] SELL,
MANUFACTURE, DELIVER, OR POSSESSION WITH INTENT TO SELL, MANUFACTURE
OR DELIVER A CONTROLLED SUBSTANCE IN SPECIFIED LOCATIONS--
893.13(1)0:)-(f) and (h)

CATEGORY ONE      CATEGORY TWO      FLA. STAT.        INS. NO.

[begin                              [begin            [begin
strikethrough]                      strikethrough]    strikethrough]
Drug abuse                          893.13(6)(a)      25.7[end
possession[end                      [end              strikethrough]
strikethrough]                      strikethrough]
Sale,
Manufacture, or                     [begin            [begin
Delivery of a                       strikethrough]    strikethrough]
controlled                          893.13(1)(a)      25.2[end
substance, if                       [end              strikethrough]
Sale,                               strikethrough]
Manufacture, or
Delivery is
charged

Possession of a   [begin            893.13(6)         25.7
Controlled        strikethrough]
Substance, if     None[end
Possession with   strikethrough]
Intent to Sell,
Manufacture, or
Deliver is
charged


Comment

[begin strikethrough]This instruction is based on section 893.13, Florida Statutes (1997), and adapted from the standard instruction on sale of contraband near a school.[end strikethrough]

Unlike the trafficking statutes, the statutes for these crimes do not contain the word "knowingly." Also, the affirmative defense statute of [section] 893.101 Fla. Stat. addresses only "knowledge of illicit nature" and not "knowledge of presence." Because of case law, "knowledge of presence" is an element of possession, which is why element #3 must be given if the defendant is charged with any type of Possession with Intent. See State v. Oxx, 417 So. 2d 287 (Fla. 5th DCA 1982). However, there is an absence of case law as to whether "knowledge of presence" is an element of Sale, Manufacture, or Delivery of a Controlled Substance, or whether "lack of knowledge of presence" is an affirmative defense. In the absence of case law, trial judges must decide this issue.

This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], 2000 [765 So. 2d 692], [begin strikethrough]and[end strikethrough] 2007 [969 So. 2d 245] and 2013. [begin strikethrough]See also SC03-629 [869 So. 2d 1205 (Fla. 2004)].[end strikethrough]

25.7 [begin strikethrough]DRUG ABUSE[end strikethrough] POSSESSION OF A CONTROLLED SUBSTANCE [section] 893.13(6)[begin strikethrough](a)[end strikethrough], Fla. Stat.

Certain drugs and chemical substances are by law known as "controlled substances." (Specific substance alleged) is a controlled substance.

To prove the crime of [begin strikethrough](crime charged)[end strikethrough] Possession of a Controlled Substance, the State must prove the following [three] [four] elements beyond a reasonable doubt:

1. (Defendant) [begin strikethrough]possessed a certain substance[end strikethrough] knew of the presence of a substance.

2. [begin strikethrough]The substance was (specific substance alleged). [end strikethrough] (Defendant) exercised control or ownership over that substance.

3. [begin strikethrough](Defendant) had knowledge of the presence of the substance.[end strikethrough] The substance was (specific substance alleged).

[section] 893.13(6)(b) Fla. Stat.

The jury must make a finding as to weight if the defendant is charged with possessing more than 20 grams of cannabis or more than 3 grams of a substance listed in [section] 893.03(1)(c)46-50, 114-142, 151-159, or 166-169 Fla. Stat.

4. The [cannabis weighed more than 20 grams] [(insert name of substance listed in 893.03(1)(c)46-50 , 114-142, 151-159, or 166-169) weighed more than three grams].

[section] 893.13(6)(c) Fla. Stat.

The jury must make a finding as to weight if the defendant is charged with violating [section] 893.13(6)(c) Fla. Stat.

4. The [(insert name of substance listed in 893.03(1)(a) or 893.03(1)(b)l [combination of (insert names of substances listed in 893.03(1)(a) or 893.03(1)(b)l [mixture containing (insert name of substance listed in 893.03(1) (a) or 893.03(1)(b)l weighed more than 10 grams.

Definitions

Give if applicable. Cannabis. [section] [section] 893.02(3), 893.13(6)(b) Fla. Stat.

Cannabis means all parts of any plant of the genus Cannabis, whether growing or not, and the seeds thereof [but does not include any resin extracted from the plant].

Possession.

[begin strikethrough]To "possess" means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed. Possession may be actual or constructive.[end strikethrough] There are two ways to exercise control: actual possession and constructive possession.

Actual possession.

Actual possession means the person is aware of the presence of the substance and:

a. The [begin strikethrough]controlled[end strikethrough] substance is in the hand of or on the person, or

b. The [begin strikethrough]controlled[end strikethrough] substance is in a container in the hand of or on the person, or

c. The [begin strikethrough]controlled[end strikethrough] substance is so close as to be within ready reach and is under the control of the person.

[begin strikethrough]Give if applicable.[end strikethrough]

[begin strikethrough]Mere proximity to a controlled substance is not sufficient to establish control over that controlled substance when it is not in a place over which the person has control.[end strikethrough]

Constructive possession.

Constructive possession means the person is aware of the presence of the substance, the [begin strikethrough]controlled[end strikethrough] substance is in a place over which the person [begin strikethrough] (defendant)[end strikethrough] has control, and the person has the ability to control the substance. [begin strikethrough]or in which the (defendant) has concealed it. [end strikethrough]

Give if applicable.

Mere proximity to a substance is not sufficient to establish control over that substance when the substance is in a place that the person does not control.

Give if applicable.

In order to establish (defendant's) constructive possession of a [begin strikethrough]controlled[end strikethrough] substance if the [begin strikethrough]controlled substance[end strikethrough] that was is in a place [begin strikethrough]over which the (defendant)[end strikethrough] [he] [she] does did not have control, the State must prove [begin strikethrough]the[end strikethrough]_(defendants) (1) knew that the substance was within [his] [her] presence has the control over the controlled substance and (2) begin strikethrough] knowledge that the controlled substance was within the (defendant's) presence[end strikethrough] exercised control or ownership over the substance itself.

Joint possession.

Possession of a substance may be sole or joint, that is, two or more persons may be aware of the presence of a substance and may jointly [begin strikethrough]possess an article exercising[end strikethrough] exercise control over it. In that case, each of those persons is considered to be in possession of that article the substance.

[begin strikethrough]If a person has exclusive possession of a controlled substance, knowledge of its presence may be inferred or assumed.

If a person does not have exclusive possession of a controlled substance, knowledge of its presence may not be inferred or assumed.[end strikethrough]

Inferences.

Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).

If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his] [her] control, [or]

c. had exclusive control of the place where the substance was located, you may infer that [he] [she] was aware of the presence of the substance and had the ability to control it.

If (defendant) did not have exclusive control over the place where a substance was located, you may not infer [he] [[she] had knowledge of the presence of the substance or the ability to control it, in the absence of other incriminating evidence.

Give if applicable. Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).

However, you may infer that (defendant) knew of the presence of the substance and had the ability to control it if [he] [she] had joint control over the place where the substance was located, and the substance was located in a common area in plain view and in the presence of the defendant.

[begin strikethrough]Knowledge of the illicit nature of the controlled substance.[end strikethrough] Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. [section] [begin strikethrough]F.S.[end strikethrough] 893.101(2) and (3), Fla. Stat.

[begin strikethrough]Knowledge of the illicit nature of the controlled substance is not an element of the offense of (insert name of offense charged).[end strikethrough] Lack of knowledge of the illicit nature of a controlled substance is [begin strikethrough]an affirmative[end strikethrough] defense to the crime of Possession of a Controlled Substance. (Defendant) has raised this [begin strikethrough]affirmative[end strikethrough] defense. [begin strikethrough]However, y[end strikethrough]

You are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that [begin strikethrough](defendant)[end strikethrough] [he] [she] knew of the presence of the substance and exercised control or ownership over the substance. [begin strikethrough]was in actual or constructive possession of the controlled substance.[end strikethrough]

If [begin strikethrough]from the evidence[end strikethrough] you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find [begin strikethrough](defendant)[end strikethrough] [him] [her] guilty of Possession of a Controlled Substance.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [begin strikethrough](defendant)[end strikethrough] [him] [her] not guilty of Possession of a Controlled Substance.

Lesser Included Offenses

[begin strikethrough]No lesser included offenses have been identified for this offense.[end strikethrough]
POSSESSION OF A CONTROLLED SUBSTANCE--893.13(6)

CATEGORY ONE                    CATEGORY TWO   FLA. STAT.     INS. NO.

Possession of Less than 20                     893.13(6)(b)   25.7
Grams of Cannabis or
Possession of Less than 3
Grams of a Substance listed
in 893.03(1)(c)46-50,
114-142, 151-159, or 166-169,
if the felony level of these
substances is charged

                                Attempt        777.04(1)      5.1


Comment

[begin strikethrough]Note [section] 893.13(6)(b), Fla. Stat., if the charge involves possession or delivery without consideration of not more than 20 grams of cannabis.[end strikethrough]

Fla. Stat. [section] 893.21

A person acting in good faith who seeks medical assistance for an individual experiencing a drug-related overdose may not be prosecuted for Possession of a Controlled Substance if the evidence of the possession was obtained as a result of the person's seeking medical assistance.

A special instruction is necessary when the defense is a mere involuntary or superficial possession. See cases such as Hamilton v. State, 732 So. 2d 493 (Fla. 2d DCA 1999) and Sanders v. State, 563 So. 2d 781 (Fla. 1st DCA 1990).

This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], [begin strikethrough]and[end strikethrough] 2007 [969 So. 2d 245], and 2013. [begin strikethrough]See also SC03-629 [869 So. 2d 1205 (Fla. 2004)]. [end strikethrough]

25.8 [begin strikethrough]DRUG ABUSE -[end strikethrough] OBTAINING A CONTROLLED SUBSTANCE BY FRAUD, ETC.

[section] 893.13(7)(a)9, Fla. Stat.

Certain drugs and chemical substances are by law known as "controlled substances." (Specific substance alleged) is a controlled substance.

To prove the crime of Obtaining a Controlled Substance by [Misrepresentation] [Fraud] [Forgery] [Deception] [Subterfuge], the State must prove the following three elements beyond a reasonable doubt:

[begin strikethrough][Misrepresentation[end strikethrough]]

[begin strikethrough][Fraud][end strikethrough]

[begin strikethrough][Forgery][end strikethrough]

[begin strikethrough][Deception][end strikethrough]

[begin strikethrough][Subterfuge][end strikethrough]

[begin strikethrough]the State must prove the following three elements beyond a reasonable doubt:[end strikethrough]

1. (Defendant) [acquired or obtained] [attempted to acquire or obtain] possession of a certain substance.

2. The substance was (specific substance alleged).

3. (Defendant) [acquired or obtained] [attempted to acquire or obtain] the substance by [misrepresentation] [fraud] [forgery] [deception] [subterfuge].

[begin strikethrough][misrepresentation].[end strikethrough]

[begin strikethrough][fraud].[end strikethrough]

[begin strikethrough][forgery].[end strikethrough]

[begin strikethrough][deception].[end strikethrough]

[begin strikethrough][subterfuge].[end strikethrough]

Affirmative defense: Lack of k[begin strikethrough] Knowledge of the illicit nature of the controlled substance. Give if applicable. [section] 893.101(2) and (3), Fla. Stat."

[begin strikethrough]Knowledge of the illicit nature of the controlled substance is not an element of the offense of (insert name of offense charged).[end strikethrough] Lack of knowledge of the illicit nature of a controlled substance is [begin strikethrough]an affirmative[end strikethrough] defense to the crime of Obtaining a Controlled Substance by [Misrepresentation] [Fraud] [Forgery] [Deception] [Subterfuge]. (Defendant) has raised this [begin strikethrough]affirmative[end strikethrough] defense. [begin strikethrough]However, you are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that (defendant) was in actual or constructive possession of the controlled substance.[end strikethrough]

You are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that (defendant) was in actual or constructive possession of the controlled substance. Read explanation of actual and/or constructive possession, as applicable.

If [begin strikethrough]from the evidence[end strikethrough] you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find [begin strikethrough](defendant) [end strikethrough] [him] [her] guilty of Obtaining a Controlled Substance by [Misrepresentation] [Fraud] [Forgery] [Deception] [Subterfuge].

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [begin strikethrough](defendant)[end strikethrough] [him] [her] not guilty of Obtaining a Controlled Substance by [Misrepresentation] [Fraud] [Forgery] [Deception] [Subterfuge].

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], [begin strikethrough] and[end strikethrough] 2007 [969 So. 2d 245] and 2013. [begin strikethrough]See also SC03-629 [869 So. 2d 1205 (Fla. 2004)].[begin strikethrough]

25.9 TRAFFICKING IN CANNABIS

[section] 893.135(1)(a), Fla. Stat.

Certain drugs and chemical substances are by law known as "controlled substances." Cannabis is a controlled substance.

To prove the crime of Trafficking in Cannabis, the State must prove the following three elements beyond a reasonable doubt:

(Defendant) knowingly [possessed] [sold] [purchased] [manufactured] [delivered] [brought into Florida] a certain substance.

[begin strikethrough][sold][end strikethrough]

[begin strikethrough][purchased][end strikethrough]

[begin strikethrough][manufactured][end strikethrough]

[begin strikethrough][delivered][end strikethrough]

[begin strikethrough][brought into Florida][end strikethrough]

[begin strikethrough][possessed][end strikethrough] [begin strikethrough]a certain substance.[end strikethrough]

2. The substance was cannabis.

3. The cannabis [weighed more than 25 pounds] [constituted 300 or more cannabis plants].

If applicable under the facts of the case and pursuant to [section] 893.135(2), Fla. Stat., instructions on the following elements 1 and 2 should be given instead of elements 1 and 2 above. For example, if it is alleged that the defendant intended to sell heroin but actually sold cannabis, instructions on elements 1 and 2 below would be given.

1. (Defendant) intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess] (an enumerated controlled substance in [section] 893.135(1), Fla. Stat.),.

2. The defendant actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] cannabis.

Definitions. Give as applicable. Cannabis. [section] 893.02(3), Fla. Stat.

"Cannabis" means all parts of any plant of the genus Cannabis whether growing or not.

Sell.

"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.

Manufacture. [section] 893.02(13)(a), Fla. Stat.

"Manufacture" means the production, preparation, packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis. It can also be by a combination of extraction and chemical synthesis.

Deliver. [section] 893.02(5), Fla. Stat.

"Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

Possession.

[begin strikethrough]To "possess" means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed.[end strikethrough]

[begin strikethrough]Possession may be actual or constructive.[end strikethrough]

There are two ways to exercise control: actual possession and constructive possession.

Actual possession.

Actual possession means the person is aware of the presence of the substance and:

a. The [begin strikethrough]controlled[end strikethrough] substance is in the hand of or on the person, or

b. The [begin strikethrough]controlled[end strikethrough] substance is in a container in the hand of or on the person, or

c. The [begin strikethrough]controlled[end strikethrough] substance is so close as to be within ready reach and is under the control of the person.

[begin strikethrough]Give if applicable.[end strikethrough]

[begin strikethrough]Mere proximity to a controlled substance is not sufficient to establish control over that controlled substance when it is not in a place over which the person has control.

Constructive possession.

Constructive possession means the person is aware of the presence of the substance, the [begin strikethrough]controlled[end strikethrough] substance is in a place over which the [begin strikethrough](defendant)[end strikethrough] person has control, and the person has the ability to control the substance [begin strikethrough]or in which the (defendant) has concealed it.[end strikethrough]

Give if applicable.

Mere proximity to a substance is not sufficient to establish control over that substance when the substance is in a place that the person does not control.

Give if applicable.

In order to establish (defendant's) constructive possession of a [begin strikethrough]controlled[end strikethrough] substance [begin strikethrough]if the controlled substance that was is in a place [begin strikethrough]over which the (defendant)[end strikethrough] [he] [she] [begin strikethrough]does[end strikethrough] did not [begin strikethrough]have[end strikethrough] control, the State must prove [begin strikethrough]the[end strikethrough]_(defendant[begin strikethrough]'s[end strikethrough]) (1) knew that the substance was within [his] [her] presence [begin strikethrough]has the control over the controlled substance[end strikethrough] and (2) [begin strikethrough]knowledge that the controlled substance was within the (defendant's) presence[end strikethrough] exercised control or ownership over the substance itself.

Joint possession.

Possession of a substance may be sole or joint, that is, two or more persons may be aware of the presence of the substance and may jointly [begin strikethrough]possess an article, exercising[end strikethrough] exercise control over it. In that case, each of those persons is considered to be in possession of [begin strikethrough]that article[end strikethrough] the substance.

[begin strikethrough]If a person has exclusive possession of a controlled substance, knowledge of its presence may be inferred or assumed.[end strikethrough]

Inferences.

Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).

You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).

If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his] [her] control, [or]

The Florida Bar News/December 15, 2013-29

c. had exclusive control of the place where the substance was located, you may infer that [he] [she] was aware of the presence of the substance and had the ability to control it.

If (defendant) did not have exclusive control over the place where a substance was located, you may not infer [he] [[she] had knowledge of the presence of the substance or the ability to control it, in the absence of other incriminating evidence.

[begin strikethrough]A special instruction is necessary where the premises is jointly occupied and the contraband is located in a common area, in plain view, and in the presence of the owner or occupant.[end strikethrough] Give if applicable. See Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).

[begin strikethrough]If a person does not have exclusive possession of a controlled substance, knowledge of its presence may not be inferred or assumed.[end strikethrough] However, you may infer that (defendant) knew of the presence of the substance and had the ability to control it if [he] [she] had joint control over the place where the substance was located, and the substance was located in a common area in plain view and in the presence of the defendant.

[begin strikethrough]Knowledge of the illicit nature of the controlled substance.[end strikethrough] Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. [section] 893.101(2) and (3), Fla. Stat.

Lack of knowledge of the illicit nature of a controlled substance is [begin strikethrough]an affirmative[end strikethrough] defense to Trafficking in Cannabis.[begin strikethrough] The defendant[end strikethrough] (Defendant) has raised this defense. [begin strikethrough]You are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that (defendant) was in actual or constructive possession of the controlled substance.[end strikethrough]

You are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that [he] [she] knew of the presence of the substance and exercised control or ownership over the substance.

If you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find [him] [her] guilty of Trafficking in Cannabis.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [begin strikethrough](defendant)[end strikethrough] [him] [her]not guilty of Trafficking in Cannabis.

[begin strikethrough]Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).[end strikethrough]

[begin strikethrough]You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.[end strikethrough]

See State v. Weller, 590 So. 2d 923 (Fla. 1991).

If you find the defendant guilty of Trafficking in Cannabis, you must further determine by your verdict whether the State has proved beyond a reasonable doubt that:

Enhanced penalty. See [section] 893.135(1)(a)1.-3., Fla. Stat. to verify the weights or amounts specified in the statute, as determined by the date of the offense. Give if applicable up to extent of charge.

a. [The cannabis weighed more than 25 pounds but less than 2,000 pounds.] [constituted 300 or more cannabis plants but not more than 2,000 cannabis plants.]]

b. [The cannabis [weighed 2,000 pounds or more but less than 10,000 pounds.] [constituted 2,000 or more cannabis plants but not more than 10,000 cannabis plants.]]

c. [The cannabis [weighed 10,000 pounds or more.] [constituted 10,000 or more cannabis plants.]

Lesser Included Offenses

Trafficking can be committed by sale, purchase, manufacture, delivery, bringing into this state, or actual or constructive possession of a certain amount of drugs. Each of these alternatives has its own statute for lower quantities of controlled substances. Accordingly, before deciding the appropriate lesser-included offenses, trial judges should review not only the evidence but also the charging document to see what type of trafficking was alleged. For example, if a defendant is charged only with Trafficking via Sale, then Possession of a Controlled Substance should not be given as a lesser-included offense.
[begin strikethrough]TRAFFICKING IN CANNABIS--893.135(1)(a)[end
strikethrough]

[begin            [begin            [begin            [begin
strikethrough]    strikethrough]    strikethrough]    strikethrough]
CATEGORY ONE      CATEGORY TWO      FLA. STAT.        INS. NO.[end
[end              [end              [end              strikethrough]
strikethrough]    strikethrough]    strikethrough]

[begin                              [begin            [begin
strikethrough]                      strikethrough]    strikethrough]
Trafficking                         893.135(1)(a)1    259[end
offenses                            and 2[end         strikethrough]
requiring lower                     strikethrough]
quantities of
cannabis[end
strikethrough]

[begin                              [begin            257
strikethrough]*                     strikethrough]*
Possession of                       893.13(6)[end
Cannabis, if                        strikethrough]
Trafficking via
Possession is
charged[end
strikethrough]

                  [begin            [begin            [begin
                  strikethrough]    strikethrough]    strikethrough]
                  Attempt,          777.04[end        5+[end
                  except when       strikethrough]    strikethrough]
                  delivery or
                  conspiracy is
                  charged[end
                  strikethrough]


Comment

[begin strikethrough]Trafficking can be committed by sale, purchase, manufacture, delivery, bringing into this state, or actual or constructive possession. The lesser-included offenses depend on what is contained in the charging document and what is supported by the evidence. For example, Possession of Cannabis is not a necessarily lesser-included offense of Trafficking in Cannabis via Sale. However, Possession of Cannabis is a necessarily-lesser included offense if the defendant is charged with Trafficking via Possession.[end strikethrough]

[begin strikethrough]* Possession of More Than 20 Grams of Cannabis is a third-degree felony. Possession of Not More than 20 Grams of Cannabis is a first degree misdemeanor. See [section] 893.13(6) Fla. Stat.[end strikethrough]

[begin strikethrough]Delivery of Less than 20 Grams of Cannabis Without Consideration is a first degree misdemeanor. See [section] 893.13(3) Fla. Stat.[end strikethrough]

There is no crime of Attempted Delivery because the definition of "delivery" in [section]893.03(6) Fla. Stat. includes the attempt to transfer from one person to another. There is no crime of attempted conspiracy. Hutchinson v. State, 315 So. 2d 546 (Fla. 2d DCA 1975).

This instruction was adopted in 1981 and amended in 1987 [509 So. 2d 917], 1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], 2007 [969 So. 2d 245], [begin strikethrough]and[end strikethrough] 2013 [112 So. 3d 1211] and 2013. [begin strikethrough]See also SC03-629 [869 So. 2d 1205 (Fla. 2004)].[end strikethrough]

25.10 TRAFFICKING IN COCAINE

[section] 893.135(1)(b), Fla. Stat.

Certain drugs and chemical substances are by law known as "controlled substances." Cocaine [or any mixture containing cocaine] is a controlled substance.

To prove the crime of Trafficking in Cocaine, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) knowingly [possessed] [sold] [purchased] [manufactured] [delivered] [brought into Florida] a certain substance.

[sold]

[begin strikethrough][purchased][end strikethrough]

[begin strikethrough][manufactured][end strikethrough]

[begin strikethrough][delivered][end strikethrough]

[begin strikethrough][brought into Florida][end strikethrough]

[begin strikethrough][possessed][end strikethrough]

[begin strikethrough]a certain substance.[end strikethrough]

2. The substance was [cocaine] [a mixture containing cocaine].

3. The [cocaine] [mixture containing cocaine] weighed 28 grams or more.

If applicable under the facts of the case and pursuant to [section] 893.135(2), Fla. Stat., instructions on the following elements 1 and 2 should be given instead of elements 1 and 2 above. For example, if it is alleged that the defendant intended to sell heroin but actually sold cocaine, instructions on elements 1 and 2 below would be given.

1. (Defendant) intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess] (an enumerated controlled substance in [section] 893.135(1), Fla. Stat.) [begin strikethrough],.[end strikethrough]

2. The defendant actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] cocaine or a mixture containing cocaine.

Definitions. Give as applicable.

Sell.

"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.

Manufacture. [section] 893.02(13)(a), Fla. Stat.

"Manufacture" means the production, preparation, packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis. It can also be by a combination of extraction and chemical synthesis.

Deliver. [section] 893.02(5), Fla. Stat.

"Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

Possession.

[begin strikethrough]To "possess" means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed.[end strikethrough]

[begin strikethrough]Possession may be actual or constructive.[end strikethrough]

There are two ways to exercise control: actual possession and constructive possession. Actual possession.

Actual possession means the person is aware of the presence of the substance and:

a. The [begin strikethrough]controlled[end strikethrough] substance is in the hand of or on the person, or

b. The [begin strikethrough]controlled[end strikethrough] substance is in a container in the hand of or on the person, or

c. The [begin strikethrough]controlled[end strikethrough] substance is so close as to be within ready reach and is under the control of the person.

[begin strikethrough]Give if applicable.[end strikethrough]

[begin strikethrough]Mere proximity to a controlled substance is not sufficient to establish control over that controlled substance when it is not in a place over which the person has control.[end strikethrough]

Constructive possession.

Constructive possession means the person is aware of the presence of the substance, the [begin strikethrough]controlled[end strikethrough] substance is in a place over which the [begin strikethrough](defendant)[end strikethrough] person has control, and the person has the ability to control the substance [begin strikethrough]or in which the (defendant) has concealed it.[end strikethrough]

Give if applicable.

Mere proximity to a substance is not sufficient to establish control over that substance when the substance is in a place that the person does not control.

Give if applicable.

In order to establish (defendant's) constructive possession of a [begin strikethrough]controlled[end strikethrough] substance [begin strikethrough]if the controlled substance[end strikethrough] that was [begin strikethrough]is[end strikethrough] in a place [begin strikethrough]over which the (defendant)[end strikethrough] [he] [she] [begin strikethrough]does[end strikethrough] did not [begin strikethrough]have[end strikethrough] control, the State must prove [begin strikethrough]the[end strikethrough] _(defendant[begin strikethrough]'s[end strikethrough]) (1) knew that the substance was within [his] [her] presence [begin strikethrough] has the control over the controlled substance[end strikethrough] and (2) [begin strikethrough]knowledge that the controlled substance was within the (defendant's) presence[end strikethrough] exercised control or ownership over the substance itself.

Joint p possession.

Possession of a substance may be sole or joint, that is, two or more persons may be aware of the presence of the substance and may jointly [begin strikethrough]possess an article, exercising[end strikethrough] exercise control over it. In that case, each of those persons is considered to be in possession of [begin strikethrough]that article[end strikethrough] the substance.

[begin strikethrough] If a person has exclusive possession of a controlled substance, knowledge of its presence may be inferred or assumed.[end strikethrough]

Inferences.

Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).

You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).

If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his] [her] control, [or]

c. had exclusive control of the place where the substance was located, you may infer that [he] [she] was aware of the presence of the substance and had the ability to control it.

If (defendant) did not have exclusive control over the place where a substance was located, you may not infer [he] [[she] had knowledge of the presence of the substance or the ability to control it, in the absence of other incriminating evidence.

[begin strikethrough]A special instruction is necessary where the premises is jointly occupied and the contraband is located in a common area, in plain view, and in the presence of the owner or occupant.[end strikethrough] Give if applicable. See Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).

[begin strikethrough]If a person does not have exclusive possession of a controlled substance, knowledge of its presence may not be inferred or assumed.[end strikethrough] However, you may infer that (defendant) knew of the presence of the substance and had the ability to control it if [he] [she] had joint control over the place where the substance was located, and the substance was located in a common area in plain view and in the presence of the defendant.

[begin strikethrough]Knowledge of the illicit nature of the controlled substance.[end strikethrough] Affirmative defense: Lack of knowledge of illicit nature. Give if applicable.[section] 893.101(2) and (3), Fla. Stat.

Lack of knowledge of the illicit nature of a controlled substance is [begin strikethrough]an affirmative[end strikethrough] defense to Trafficking in Cocaine. [begin strikethrough]The defendant[end strikethrough] (Defendant) has raised this defense. [begin strikethrough]You are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that (defendant) was in actual or constructive possession of the controlled substance.[end strikethrough]

You are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that [he] [she] knew of the presence of the substance and exercised control or ownership over the substance.

If you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find [him] [her] guilty of Trafficking in Cocaine.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [begin strikethrough](defendant)[end strikethrough] [him] [her] not guilty of Trafficking in Cocaine.

[begin strikethrough]Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).[end strikethrough]

[begin strikethrough]You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.[end strikethrough]

See State v. Weller, 590 So. 2d 923 (Fla. 1991).

If you find the defendant guilty of Trafficking in Cocaine, you must further determine by your verdict whether the State has further proved beyond a reasonable doubt that:

Enhanced penalty. See [section] 893.135(1)(b)1.-2., Fla. Stat. to verify the weights or amounts specified in the statute, as determined by the date of the offense. Give if applicable up to extent of charge.

a. [The [cocaine][mixture containing cocaine] weighed 28 grams or more but less than 200 grams.]

b. [The [cocaine][mixture containing cocaine] weighed 200 grams or more but less than 400 grams.]

c. [The [cocaine][mixture containing cocaine] weighed 400 grams or more but less than 150 kilograms.]

d. [The [cocaine][mixture containing cocaine] weighed 150 kilograms or more.]

Lesser Included Offenses

Trafficking can be committed by sale, purchase, manufacture, delivery, bringing into this state, or actual or constructive possession of a certain amount of drugs. Each of these alternatives has its own statute for lower quantities of controlled substances. Accordingly. before deciding the appropriate lesser-included offenses. trial judges should review not only the evidence but also the charging document to see what type of trafficking was alleged. For example. if a defendant is charged only with Trafficking via Sale. then Possession of a Controlled Substance should not be given as a lesser-included offense.
[begin strikethrough]TRAFFICKING IN COCAINE-893.135(1)(b)1 & 2[end
strikethrough]

[begin             [begin            [begin            [begin
strikethrough]     strikethrough]    strikethrough]    strikethrough]
CATEGORY ONE[end   CATEGORY TWO      FLA. STAT.[end    INS. NO.[end
strikethrough]     [end              strikethrough]    strikethrough]
                   strikethrough]

[begin                               [begin            [begin
strikethrough]                       strikethrough]    strikethrough]
Trafficking                          893.135(1)(b)1    25.10[end
offenses                             [end              strikethrough]
requiring lower                      strikethrough]
quantities of
cocaine[end
strikethrough]

[begin                               [begin            [begin
strikethrough]                       strikethrough]    strikethrough]
Possession of                        893.13(6)(a)      257[end
Cocaine. If                          [end              strikethrough]
Trafficking via                      strikethrough]
Possession is
charged[end
strikethrough]

                   [begin            [begin            [begin
                   strikethrough]    strikethrough]    strikethrough]
                   Attempt except    777.04[end        5.1[end
                   when delivery     strikethrough]    strikethrough]
                   or conspiracy
                   is charged[end
                   strikethrough]


Comment

[begin strikethrough]Trafficking can be committed by sale, purchase, manufacture, delivery, bringing into this state, or actual or constructive possession. The lesser-included offenses depend on what is contained in the charging document and what is supported by the evidence. For example. Possession of Cocaine is not a necessarily lesser-included offense of Trafficking in Cocaine via Sale. However. Possession of Cocaine is a necessarily-lesser included offense if the defendant is charged with Trafficking via Possession.[end strikethrough]

There is no crime of Attempted Delivery because the definition of "delivery" in [section]893.03(6) Fla. Stat. includes the attempt to transfer from one person to another. There is no crime of attempted conspiracy. Hutchinson v. State. 315 So. 2d 546 (Fla. 2d DCA 1975).

This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985], 1987 [509 So. 2d 917], 1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], 2007 [begin strikethrough] [SC05-1434. October 25. 2007[end strikethrough] 969 So. 2d 245], [begin strikethrough]and[end strikethrough] 2013 [112 So. 3d 1211] and 2013. See also SC03-629 [869 So. 2d 1205 (Fla. 2004)].

25.11 TRAFFICKING IN [MORPHINE] [OPIUM] [OXYCODONE] [HYDROCODONE] [HYDROMORPHONE] [HEROIN] [(SPECIFIC SUBSTANCE ALLEGED)] [section] 893.135(1)(c). Fla. Stat.

Certain drugs and chemical substances are by law known as "controlled substances." (Specific substance alleged) or any mixture containing (specific substance alleged) is a controlled substance.

To prove the crime of Trafficking in [(specific substance alleged)], the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) knowingly [possessed] [sold] [purchased] [manufactured] [delivered] [brought into Florida] a certain substance.

[begin strikethrough][sold][end strikethrough]

[begin strikethrough][purchased][end strikethrough]

[begin strikethrough][manufactured][end strikethrough]

[begin strikethrough][delivered][end strikethrough]

[begin strikethrough][brought into Florida][end strikethrough]

[begin strikethrough][possessed][end strikethrough]

[begin strikethrough]a certain substance.[end strikethrough]

2. The substance was [morphine] [opium] [oxycodone] [hydrocodone] [hydromorphone] [heroin] [(specific substance alleged)] [a mixture containing [morphine] [opium] [oxycodone] [hydrocodone] [hydromorphone] [heroin] [(specific substance alleged)].

3. The [morphine] [opium] [oxycodone] [hydrocodone] [hydromorphone] [heroin] [(specific substance alleged)] [mixture containing [morphine] [opium] [oxycodone] [hydrocodone] [hydromorphone] [heroin] [(specific substance alleged)] weighed 4 grams or more.

If applicable under the facts of the case and pursuant to [section] 893.135(2), Fla. Stat., instructions on the following elements 1 and 2 should be given instead of elements 1 and 2 above. For example, if it is alleged that the defendant intended to sell heroin but actually sold phencyclidine, instructions on elements 1 and 2 below would be given.

1. (Defendant) intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess] (an enumerated controlled substance in [section] 893.135(1). Fla. Stat.)[begin strikethrough];[end strikethrough].

2. The defendant actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] (specific substance alleged) or a mixture containing (specific substance alleged).

Definitions. Give as applicable.

Sell.

"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.

Manufacture. [section] 893.02(13)(a), Fla. Stat.

"Manufacture" means the production, preparation, packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis. It can also be by a combination of extraction and chemical synthesis.

Possession.

[begin strikethrough]To "possess" means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed.[end strikethrough]

[begin strikethrough]Possession may be actual or constructive.[end strikethrough]

There are two ways to exercise control: actual possession and constructive possession.

Actual possession.

Actual possession means the person is aware of the presence of the substance and:

a. The [begin strikethrough]controlled[end strikethrough] substance is in the hand of or on the person, or

b. The [begin strikethrough]controlled[end strikethrough] substance is in a container in the hand of or on the person, or

c. The [begin strikethrough]controlled[end strikethrough] substance is so close as to be within ready reach and is under the control of the person.

[begin strikethrough]Give if applicable.[end strikethrough]

[begin strikethrough]Mere proximity to a controlled substance is not sufficient to establish control over that controlled substance when it is not in a place over which the person has control.[end strikethrough]

Constructive possession.

Constructive possession means the person is aware of the presence of the substance, the [begin strikethrough]controlled[end strikethrough] substance is in a place over which the [begin strikethrough](defendant)[end strikethrough] person has control, and the person has the ability to control the substance [begin strikethrough]or in which the (defendant) has concealed it.[end strikethrough]

Give if applicable.

Mere proximity to a substance is not sufficient to establish control over that substance when the substance is in a place that the person does not control.

Give if applicable.

In order to establish (defendant's) constructive possession of a [begin strikethrough]controlled[end strikethrough] substance [begin strikethrough]if the controlled substance[end strikethrough] that was [begin strikethrough]is[end strikethrough] in a place over which the [begin strikethrough] (defendant)[end strikethrough] [he] [she] [begin strikethrough]does[end strikethrough] did not [begin strikethrough]have[end strikethrough]control, the State must prove [begin strikethrough]the[end strikethrough] (defendant[begin strikethrough]'s[end strikethrough]) (1) knew that the substance was within [his] [her] presence has the control over the controlled substance and (2) [begin strikethrough]knowledge that the controlled substance was within the (defendant's) presence[end strikethrough] exercised control or ownership over the substance itself.

Joint possession.

Possession of a substance may be sole or joint, that is, two or more persons may be aware of the presence of the substance and may jointly [begin strikethrough]possess an article, exercising[end strikethrough] exercise control over it. In that case, each of those persons is considered to be in possession of that article the substance.

[begin strikethrough]If a person has exclusive possession of a controlled substance, knowledge of its presence may be inferred or assumed.[end strikethrough]

Inferences.

Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).

You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).

If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his] [her] control, [or]

c. had exclusive control of the place where the substance was located, you may infer that [he] [she] was aware of the presence of the substance and had the ability to control it.

If (defendant) did not have exclusive control over the place where a substance was located, you may not infer [he] [[she] had knowledge of the presence of the substance or the ability to control it, in the absence of other incriminating evidence.

[begin strikethrough]A special instruction is necessary where the premises is jointly occupied and the contraband is located in a common area, in plain view, and in the presence of the owner or occupant.[end strikethrough] Give if applicable. See Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).

[begin strikethrough]If a person does not have exclusive possession of a controlled substance, knowledge of its presence may not be inferred or assumed.[end strikethrough] However, you may infer that (defendant) knew of the presence of the substance and had the ability to control it if [he] [she] had joint control over the place where the substance was located, and the substance was located in a common area in plain view and in the presence of the defendant.

[begin strikethrough]Knowledge of the illicit nature of the controlled substance.[end strikethrough] Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. [section] 893.101(2) and (3), Fla. Stat.

Lack of knowledge of the illicit nature of a controlled substance is [begin strikethrough]an affirmative[end strikethrough] defense to Trafficking in (Substance Alleged). [begin strikethrough]The defendant[end strikethrough] (Defendant) has raised this defense. [begin strikethrough]You are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that (defendant) was in actual or constructive possession of the controlled substance.[end strikethrough]

You are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that [he] [she] knew of the presence of the substance and exercised control or ownership over the substance.

If you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find [him] [her] guilty of Trafficking in (Substance Alleged).

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [begin strikethrough](defendant)[end strikethrough] [him] [her] not guilty of Trafficking in (Substance Alleged).

[begin strikethrough]Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).[end strikethrough]

[begin strikethrough]You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.[end strikethrough]

See State v. Weller, 590 So. 2d 923 (Fla. 1991).

If you find the defendant guilty of Trafficking in Illegal Drugs, you must further determine by your verdict whether the State has proved beyond a reasonable doubt that:

Enhanced penalty. See [section] 893.135(1)(c)1.-2., Fla. Stat. to verify the weights or amounts specified in the statute, as determined by the date of the offense. Give if applicable up to extent of charge.

a. [The [morphine] [opium] [oxycodone] [hydrocodone] [hydromorphone] [heroin] [(specific substance alleged)] [mixture containing [morphine] [opium] [oxycodone] [hydrocodone] [hydromorphone] [herioin] [(specific substance alleged)] weighed 4 grams or more but less than 14 grams.]

b. [The [morphine] [opium] [oxycodone] [hydrocodone] [hydromorphone] [heroin] [(specific substance alleged)] [mixture containing [morphine] [opium] [oxycodone] [hydrocodone] [hydromorphone] [herioin] [(specific substance alleged)] weighed 14 grams or more but less than 28 grams.]

c. [The [morphine] [opium] [oxycodone] [hydrocodone] [hydromorphone] [heroin] [(specific substance alleged)] [mixture containing [morphine] [opium] [oxycodone] [hydrocodone] [hydromorphone] [herioin] [(specific substance alleged)] weighed 28 grams or more but less than 30 kilograms.]

d. [The [morphine] [opium] [oxycodone] [hydrocodone] [hydromorphone] [heroin] [(specific substance alleged)] [mixture containing [morphine] [opium] [oxycodone] [hydrocodone] [hydromorphone] [herioin] [(specific substance alleged)] weighed 30 kilograms or more.]

Lesser Included Offenses

Trafficking can be committed by sale, purchase, manufacture, delivery, bringing into this state, or actual or constructive possession of a certain amount of drugs. Each of these alternatives has its own statute for lower quantities of controlled substances. Accordingly, before deciding the appropriate lesser-included offenses, trial judges should review not only the evidence but also the charging document to see what type of trafficking was alleged. For example, if a defendant is charged only with Trafficking via Sale, then Possession of a Controlled Substance should not be given as a lesser-included offense.
[begin strikethrough]TRAFFICKING IN ILLEGAL DRUGS--893 135(1)(c)1 and
2[end strikethrough]

[begin            [begin            [begin            [begin
strikethrough]    strikethrough]    strikethrough]    strikethrough]
CATEGORY ONE      CATEGORY TWO      FLA. STAT.[end    INS. NO.[end
[end              [end              strikethrough]    strikethrough]
strikethrough]    strikethrough]

[begin                              [begin            [begin
strikethrough]                      strikethrough]    strikethrough]
Trafficking                         893.135(1)(c)1    25.11[end
offenses                            [end              strikethrough]
requiring lower                     strikethrough]
quantities of
illegal
drugs[end
strikethrough]

[begin                              [begin            [begin
strikethrough]                      strikethrough]    strikethrough]
Possession of a                     893.13(6)(a)[end  25.7[end
Controlled                          strikethrough]    strikethrough]
Substance. if
Trafficking via
Possession is
charged[end
strikethrough]

                  [begin            [begin            [begin
                  strikethrough]    strikethrough]    strikethrough]
                  Attempt except    777.04[end        5.1[end
                  where delivery    strikethrough]    strikethrough]
                  or conspiracy
                  is charged[end
                  strikethrough]


Comment

[begin strikethrough]Trafficking can be committed by sale, purchase, manufacture, delivery, bringing into this state, or actual or constructive possession. The lesser-included offenses depend on what is contained in the charging document and what is supported by the evidence. For example, Possession of a Controlled Substance is not a necessarily lesser-included offense of Trafficking in a Controlled Substance via Sale. However, Possession of a Controlled Substance is a necessarily-lesser included offense if the defendant is charged with Trafficking via Possession.[end strikethrough]

There is no crime of Attempted Delivery because the definition of "delivery" in [section]893.03(6) Fla. Stat. includes the attempt to transfer from one person to another. There is no crime of attempted conspiracy. Hutchinson v. State, 315 So. 2d 546 (Fla. 2d DCA 1975).

This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985], 1987 [509 So. 2d 917], 1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], 2007 [969 So. 2d 245], [begin strikethrough]and[end strikethrough] 2013 [112 So. 3d 1211] and 2013. [begin strikethrough]See also SC03-629 [869 So. 2d 1205 (Fla. 2004)].[end strikethrough]

25.12 TRAFFICKING IN PHENCYCLIDINE [section] 893.135(1)(d), Fla. Stat.

Certain drugs and chemical substances are by law known as "controlled substances." Phencyclidine or any mixture containing phencyclidine is a controlled substance.

To prove the crime of Trafficking in Phencyclidine, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) knowingly [possessed] [sold] [purchased] [manufactured] [delivered] [brought into Florida] a certain substance.

[begin strikethrough][sold][purchased]

[begin strikethrough][manufactured][end strikethrough]

[begin strikethrough][delivered][end strikethrough]

[begin strikethrough][brought into Florida][end strikethrough]

[begin strikethrough][possessed][end strikethrough]

[begin strikethrough]a certain substance.[end strikethrough]

2. The substance was [phencyclidine] [a mixture containing phencyclidine].

3. The [phencyclidine] [mixture containing phencyclidine] weighed 28 grams or more.

If applicable under the facts of the case and pursuant to [section] 893.135(2), Fla. Stat., instructions on the following elements 1 and 2 should be given instead of elements 1 and 2 above. For example, if it is alleged that the defendant intended to sell heroin but actually sold phencyclidine, instructions on elements 1 and 2 below would be given.

1. (Defendant) intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess] (an enumerated controlled substance in [section] 893.135(1), Fla. Stat.)[begin strikethrough],[end strikethrough].

2. The defendant actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] phencyclidine or a mixture containing phencyclidine.

Definitions. Give as applicable.

Sell.

"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.

Manufacture. [section] 893.02(13)(a), Fla. Stat.

"Manufacture" means the production, preparation, packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis. It can also be by a combination of extraction and chemical synthesis.

Deliver. [section] 893.02(5), Fla. Stat.

"Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

Possession.

[begin strikethrough]To "possess" means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed.[end strikethrough]

[begin strikethrough]Possession may be actual or constructive.[end strikethrough]

There are two ways to exercise control: actual possession and constructive possession.

Actual possession.

Actual possession means the person is aware of the presence of the substance and:

a. The [begin strikethrough]controlled[end strikethrough] substance is in the hand of or on the person, or

b. The [begin strikethrough]controlled[end strikethrough] substance is in a container in the hand of or on the person, or

c. The [begin strikethrough]controlled[end strikethrough] substance is so close as to be within ready reach and is under the control of the person.

[begin strikethrough]Give if applicable.[end strikethrough]

Mere proximity to a controlled substance is not sufficient to establish control over that controlled substance when it is not in a place over which the person has control.

Constructive possession.

Constructive possession means the person is aware of the presence of the substance, the [begin strikethrough]controlled[end strikethrough] substance is in a place over which the [begin strikethrough](defendant)[end strikethrough] person has control, and the person has the ability to control the substance [begin strikethrough]or in which the (defendant) has concealed it.[end strikethrough]

Give if applicable.

Mere proximity to a substance is not sufficient to establish control over that substance when the substance is in a place that the person does not control.

Give if applicable.

In order to establish (defendant's) constructive possession of a [begin strikethrough]controlled[end strikethrough] substance [begin strikethrough]if the controlled substance[end strikethrough] that was is in a place [begin strikethrough]over which the (defendant)[end strikethrough] [he] [she] [begin strikethrough]does[end strikethrough] did not [begin strikethrough]have[end strikethrough] control, the State must prove [begin strikethrough]the[end strikethrough] _(defendant[begin strikethrough]'s[end strikethrough]) (1) knew that the substance was within [his] [her] presence [begin strikethrough]has the control over the controlled substance[end strikethrough] and (2) [begin strikethrough]knowledge that the controlled substance was within the (defendant's) presence[end strikethrough] exercised control or ownership over the substance itself.

Joint possession.

Possession of a substance may be sole or joint, that is, two or more persons may be aware of the presence of the substance and may jointly [begin strikethrough]possess an article, exercising[end strikethrough] exercise control over it. In that case, each of those persons is considered to be in possession of [begin strikethrough]that article[end strikethrough] the substance.

[begin strikethrough]If a person has exclusive possession of a controlled substance, knowledge of its presence may be inferred or assumed.[end strikethrough]

Inferences.

Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).

You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).

If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his] [her] control, [or]

c. had exclusive control of the place where the substance was located, you may infer that [he] [she] was aware of the presence of the substance and had the ability to control it.

If (defendant) did not have exclusive control over the place where a substance was located, you may not infer [he] [[she] had knowledge of the presence of the substance or the ability to control it, in the absence of other incriminating evidence.

[begin strikethrough]A special instruction is necessary where the premises is jointly occupied and the contraband is located in a common area, in plain view, and in the presence of the owner or occupant.[end strikethrough] Give if applicable. See Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).

[begin strikethrough]If a person does not have exclusive possession of a controlled substance, knowledge of its presence may not be inferred or assumed.[end strikethrough] However, you may infer that (defendant) knew of the presence of the substance and had the ability to control it if [he] [she] had joint control over the place where the substance was located, and the substance was located in a common area in plain view and in the presence of the defendant.

[begin strikethrough]Knowledge of the illicit nature of the controlled substance.[end strikethrough] Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. [section] 893.101(2) and (3), Fla. Stat.

Lack of knowledge of the illicit nature of a controlled substance is [begin strikethrough]an affirmative[end strikethrough] defense to Trafficking in Phencyclidine. [begin strikethrough]The defendant[end strikethrough] (Defendant) has raised this defense. [begin strikethrough]You are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that (defendant) was in actual or constructive possession of the controlled substance.[end strikethrough]

You are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that [he] [she] knew of the presence of the substance and exercised control or ownership over the substance.

If you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find [him] [her] guilty of Trafficking in Phencyclidine.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [begin strikethrough](defendant)[end strikethrough] [him] [her] not guilty of Trafficking in Phencyclidine.

[begin strikethrough]Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).[end strikethrough]

[begin strikethrough]You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.[end strikethrough]

See State v. Weller, 590 So. 2d 923 (Fla. 1991).

If you find the defendant guilty of Trafficking in Phencyclidine, you must further determine by your verdict whether the State has proved beyond a reasonable doubt that:

Enhanced penalty. See [section] 893.135(1)(d)1.a.-c., Fla. Stat. to verify the weights or amounts specified in the statute, as determined by the date of the offense. Give if applicable up to extent of charge.

a. [The [phencyclidine][mixture containing phencyclidine] weighed 28 grams or more but less than 200 grams.]

b. [The [phencyclidine][mixture containing phencyclidine] weighed 200 grams or more but less than 400 grams.]

c. [The [phencyclidine][mixture containing phencyclidine] weighed 400 grams or more.]

Lesser Included Offenses

Trafficking can be committed by sale, purchase, manufacture, delivery, bringing into this state, or actual or constructive possession of a certain amount of drugs. Each of these alternatives has its own statute for lower quantities of controlled substances. Accordingly, before deciding the appropriate lesser-included offenses, trial judges should review not only the evidence but also the charging document to see what type of trafficking was alleged. For example, if a defendant is charged only with Trafficking via Sale, then Possession of a Controlled Substance should not be given as a lesser-included offense.
[begin strikethrough]TRAFFICKING IN PHENCYCLIDINE-893.135(1)(d)[begin
strikethrough]

[begin             [begin            [begin            [begin
strikethrough]     strikethrough]    strikethrough]    strikethrough]
CATEGORY ONE[end   CATEGORY TWO      FLA. STAT.[end    INS. NO.[end
strikethrough]     [end              strikethrough]    strikethrough]
                   strikethrough]

[begin                               [begin            [begin
strikethrough]                       strikethrough]    strikethrough]
Trafficking                          893.135(1)(d)     25.9[end
offenses                             1.a and b[end     strikethrough]
requiring lower                      strikethrough]
quantities of
phencyclidine
[end
strikethrough]

[begin                               [begin            [begin
strikethrough]                       strikethrough]    strikethrough]
Possession of a                      893.13(6)(a)      25.7[end
Phencyclidine,                       [end              strikethrough]
if Trafficking                       strikethrough]
via Possession
is charged[end
strikethrough]

                   [begin            [begin            [begin
                   strikethrough]    strikethrough]    strikethrough]
                   Attempt except    777.04(1)[end     5.1[end
                   when delivery     strikethrough]    strikethrough]
                   or conspiracy
                   is charged[end
                   strikethrough]


Comment

[begin strikethrough]Trafficking can be committed by sale, purchase, manufacture, delivery, bringing into this state, or actual or constructive possession. The lesser-included offenses depend on what is contained in the charging document and what is supported by the evidence. For example, Possession of Phencyclidine is not a necessarily lesser-included offense of Trafficking in Phencyclidine via Sale. However, Possession of Phencyclidine is a necessarily-lesser included offense if the defendant is charged with Trafficking via Possession.[end strikethrough]

There is no crime of Attempted Delivery because the definition of "delivery" in [section]893.03(6) Fla. Stat. includes the attempt to transfer from one person to another. There is no crime of attempted conspiracy. Hutchinson v. State, 315 So. 2d 546 (Fla. 2d DCA 1975).

This instruction was adopted in 1981 and amended in 1987 [509 So. 2d 917], 1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], 2007 [969 So. 2d 245], 2013 [112 So. 3d 1211] and 2013. [begin strikethrough]See also SC03-629 [869 So. 2d 1205 (Fla. 2004)].[end strikethrough]

25.13 TRAFFICKING IN METHAQUALONE

[section] 893.135(1)(e), Fla. Stat.

Certain drugs and chemical substances are by law known as "controlled substances." Methaqualone or any mixture containing methaqualone is a controlled substance.

To prove the crime of Trafficking in Methaqualone, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) knowingly [possessed] [sold] [purchased] [manufactured] [delivered] [brought into Florida] a certain substance.

[begin strikethrough][sold][purchased]

[begin strikethrough][manufactured][end strikethrough]

[begin strikethrough][delivered][end strikethrough]

[begin strikethrough][brought into Florida][end strikethrough]

[begin strikethrough][possessed][end strikethrough]

[begin strikethrough]a certain substance.[end strikethrough]

2. The substance was [methaqualone] [a mixture containing methaqualone].

3. The [methaqualone] [a mixture containing methaqualone] weighed 200 grams or more.

If applicable under the facts of the case and pursuant to [section] 893.135(2), Fla. Stat., instructions on the following elements 1 and 2 should be given instead of elements 1 and 2 above. For example, if it is alleged that the defendant intended to sell heroin but actually sold methaqualone, instructions on elements 1 and 2 below would be given.

1. (Defendant) intended to [sell] [purchase] [manufacture] [deliver] [bring into Florida] [possess] (an enumerated controlled substance in [section] 893.135(1), Fla. Stat.)[begin strikethrough],[end strikethrough].

2. The defendant actually [sold] [purchased] [manufactured] [delivered] [brought into Florida] [possessed] methaqualone or a mixture containing methaqualone.

Sell.

"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.

Manufacture. [section] 893.02(13)(a), Fla. Stat.

"Manufacture" means the production, preparation, packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis. It can also be by a combination of extraction and chemical synthesis.

Deliver. [section] 893.02(5), Fla. Stat.

"Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

Possession.

[begin strikethrough]To "possess" means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed.[end strikethrough]

[begin strikethrough]Possession may be actual or constructive.[end strikethrough]

There are two ways to exercise control: actual possession and constructive possession.

Actual possession.

Actual possession means the person is aware of the presence of the substance and:

a. The [begin strikethrough]controlled[end strikethrough] substance is in the hand of or on the person, or

b. The [begin strikethrough]controlled[end strikethrough] substance is in a container in the hand of or on the person, or

c. The [begin strikethrough]controlled[end strikethrough] substance is so close as to be within ready reach and is under the control of the person.

[begin strikethrough]Give if applicable.[end strikethrough]

[begin strikethrough]Mere proximity to a controlled substance is not sufficient to establish control over that controlled substance when it is not in a place over which the person has control.[end strikethrough]

Constructive possession.

Constructive possession means the person is aware of the presence of the substance, the [begin strikethrough]controlled[end strikethrough] substance is in a place over which the [begin strikethrough](defendant)[end strikethrough] person has control, and the person has the ability to control the substance [begin strikethrough]or in which the (defendant) has concealed it.[end strikethrough]

Give if applicable.

Mere proximity to a substance is not sufficient to establish control over that substance when the substance is in a place that the person does not control.

Give if applicable.

In order to establish (defendant's) constructive possession of a [begin strikethrough]controlled[end strikethrough] substance [begin strikethrough]if the controlled substance[end strikethrough] that was [begin strikethrough]is[end strikethrough] in a place [begin strikethrough]over which the (defendant)[end strikethrough] [he] [she] [begin strikethrough]does[end strikethrough] did not [begin strikethrough]have[end strikethrough] control, the State must prove [begin strikethrough]the[end strikethrough]_(defendant[begin strikethrough]'s[end strikethrough]) (1) knew that the substance was within [his] [her] presence has the control over the controlled substance and (2) [begin strikethrough]knowledge that the controlled substance was within the (defendant's) presence[end strikethrough] exercised control or ownership over the substance itself.

Joint possession.

Possession of a substance may be sole or joint, that is, two or more persons may be aware of the presence of the substance and may jointly [begin strikethrough]possess an article, exercising[end strikethrough] exercise control over it. In that case, each of those persons is considered to be in possession of that article the substance.

[begin strikethrough]If a person has exclusive possession of a controlled substance, knowledge of its presence may be inferred or assumed.[end strikethrough]

Inferences.

Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).

You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.

Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).

If you find that (defendant):

a. had direct physical custody of the substance, [or]

b. was within ready reach of the substance and the substance was under [his] [her] control, [or]

c. had exclusive control of the place where the substance was located, you may infer that [he] [she] was aware of the presence of the substance and had the ability to control it.

If (defendant) did not have exclusive control over the place where a substance was located, you may not infer [he] [[she] had knowledge of the presence of the substance or the ability to control it, in the absence of other incriminating evidence.

[begin strikethrough]A special instruction is necessary where the premises is jointly occupied and the contraband is located in a common area, in plain view, and in the presence of the owner or occupant.[end strikethrough] Give if applicable. See Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).

[begin strikethrough]If a person does not have exclusive possession of a controlled substance, knowledge of its presence may not be inferred or assumed.[end strikethrough] However, you may infer that (defendant) knew of the presence of the substance and had the ability to control it if [he] [she] had joint control over the place where the substance was located, and the substance was located in a common area in plain view and in the presence of the defendant.

[begin strikethrough]Knowledge of the illicit nature of the controlled substance.[end strikethrough] Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. [section] 893.101(2) and (3), Fla. Stat.

Lack of knowledge of the illicit nature of a controlled substance is [begin strikethrough]an affirmative[end strikethrough] defense to Trafficking in Methaqualone. [begin strikethrough] The defendant[end strikethrough] (Defendant) has raised this defense. [begin strikethrough]You are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that (defendant) was in actual or constructive possession of the controlled substance.[end strikethrough]

You are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that [he] [she] knew of the presence of the substance and exercised control or ownership over the substance.

If you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find [him] [her] guilty of Trafficking in Methaqualone.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [begin strikethrough](defendant)[end strikethrough] [him] [her]not guilty of Trafficking in Methaqualone.

[begin strikethrough]Give if applicable. See McMillan v. State, 813 So. 2d 56 (Fla. 2002).[end strikethrough]

[begin strikethrough]You are permitted to infer that a person who sells a controlled substance knows of its illicit nature.[end strikethrough]

See State v. Weller, 590 So. 2d 923 (Fla. 1991).

If you find the defendant guilty of Trafficking in Methaqualone, you must further determine by your verdict whether the State has proved beyond a reasonable doubt that:

Enhanced penalty. See [section] 893.135(1)(e)1.a.-c., Fla. Stat. to verify the weights or amounts specified in the statute, as determined by the date of the offense. Give if applicable up to extent of charge.

a. [The [methaqualone][mixture containing methaqualone] weighed 200 grams or more but less than 5 kilograms.]

b. [The [methaqualone][mixture containing methaqualone] weighed 5 kilograms or more but less than 25 kilograms.]

c. [The [methaqualone][mixture containing methaqualone] weighed 25 kilograms or more.]

Lesser Included Offenses

Trafficking can be committed by sale, purchase, manufacture, delivery, bringing into this state, or actual or constructive possession of a certain amount of drugs. Each of these alternatives has its own statute for lower quantities of controlled substances. Accordingly, before deciding the appropriate lesser-included offenses, trial judges should review not only the evidence but also the charging document to see what type of trafficking was alleged. For example, if a defendant is charged only with Trafficking via Sale, then Possession of a Controlled Substance should not be given as a lesser-included offense.
[begin strikethrough]TRAFFICKING IN METHAQUALONE-893.135(1)(e)1[end
strikethrough]

[begin            [begin            [begin             [begin
strikethrough]    strikethrough]    strikethrough]     strikethrough]
CATEGORY ONE      CATEGORY TWO      FLA. STAT.[end     INS. NO.[end
[end              [end              strikethrough]     strikethrough]
strikethrough]    strikethrough]

[begin                              [begin             [begin
strikethrough]                      strikethrough]     strikethrough]
Trafficking                         893.135(1)(e)1.a   2513[end
offenses                            and b[end          strikethrough]
requiring lower                     strikethrough]
quantities of
methaqualone
[end
strikethrough]

[begin                              [begin             [begin
strikethrough]                      strikethrough]     strikethrough]
Possession of                       893.13(6)(a)       25.7[end
Methaqualone,                       [end               strikethrough]
if Trafficking                      strikethrough]
via Possession
is charged[end
strikethrough]

                  [begin            [begin             [begin
                  strikethrough]    strikethrough]     strikethrough]
                  Attempt except    777.04(1)[end      51[end
                  when delivery     strikethrough]     strikethrough]
                  or conspiracy
                  is charged[end
                  strikethrough]


Comment

[begin strikethrough]Trafficking can be committed by sale, purchase, manufacture, delivery, bringing into this state, or actual or constructive possession. The lesser-included offenses depend on what is contained in the charging document and what is supported by the evidence. For example, Possession of Methaqualone is not a necessarily lesser-included offense of Trafficking in Methaqualone via Sale. However, Possession of Methaqualone is a necessarily-lesser included offense if the defendant is charged with Trafficking via Possession.[end strikethrough]

There is no crime of Attempted Delivery because the definition of "delivery" in [section]893.03(6) Fla. Stat. includes the attempt to transfer from one person to another. There is no crime of attempted conspiracy. Hutchinson v. State, 315 So. 2d 546 (Fla. 2d DCA 1975).

This instruction was adopted in 1981 and amended in 1987 [509 So. 2d 917], 1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], 2007 [969 So. 2d 245], 2013 [112 So. 3d 1211] and 2013. [begin strikethrough]See also SC03-629 [869 So. 2d 1205 (Fla. 2004)].[end strikethrough]

25.14 [begin strikethrough]DRUG ADUSE--[end strikethrough]USE OR POSSESSION WITH INTENT TO USE [begin trikethrough]OF[end strikethrough] DRUG PARAPHERNALIA

[section] 893.147(1), Fla. Stat.

To prove the crime of Use or Possession With Intent to Use [begin strikethrough]of[end strikethrough] Drug Paraphernalia, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) [begin strikethrough]used or had in [his] [her] possession with intent to use drug paraphernalia[end strikethrough] knew of the presence of [begin strikethrough]the[end strikethrough] drug paraphernalia.

2. (Defendant) [begin strikethrough]had knowledge of the presence of the drug paraphernalia[end strikethrough] [used the drug paraphernalia] [or] [possessed the drug paraphernalia with intent to use it] to:

[plant] [propagate] [cultivate] [grow] [harvest] [manufacture] [compound] [convert] [produce] [process] [prepare] [test] [analyze] [pack] repack] [store] contain] Iconceall a controlled substance; or

[inject] [ingest] [inhale] [or] [introduce] a controlled substance into the human body.

Definitions.

Possession.

[begin strikethrough]To "possess" means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed.[end strikethrough]

[begin strikethrough]Possession may be actual or constructive.[end strikethrough]

There are two ways to exercise control: actual possession and constructive possession.

Actual possession.

Actual possession of drug paraphernalia means the person is aware of the presence of the drug paraphernalia and:

a. The drug paraphernalia is in the hand of or on the person, or

b. The drug paraphernalia is in a container in the hand of or on the person, or

c. The drug paraphernalia is so close as to be within ready reach and is under the control of the person.

[begin strikethrough]Give if applicable.[end strikethrough]

[begin strikethrough]Mere proximity to a paraphernalia is not sufficient to establish control over that paraphernalia when it is not in a place over which the person has control.[end strikethrough]

Constructive possession.

Constructive possession of drug paraphernalia means the person is aware of the presence of the drug paraphernalia, the drug paraphernalia is in a place over which the [begin strikethrough](defendant)[end strikethrough] person has control, and the person has the ability to control the drug paraphernalia, [begin strikethrough]or in which the (defendant) has concealed it.[end strikethrough]

Give if applicable.

Mere proximity to drug paraphernalia is not sufficient to establish control over that drug paraphernalia when the drug paraphernalia is in a place that the person does not control.

Give if applicable.

In order to establish (defendant's) constructive possession of a [begin strikethrough]controlled substance if the controlled substance[end strikethrough] is drug paraphernalia that was in a place [begin strikethrough]over which the (defendant) does[end strikethrough] [he] [she] did not [begin strikethrough]have[end strikethrough] control, the State must prove [begin strikethrough]the[end strikethrough] (defendant[begin strikethrough]'s[end strikethrough]) (1) knew that the drug paraphernalia was within [his] [her] presence [begin strikethrough]control over the controlled substance[end strikethrough] and (2) [begin strikethrough]knowledge that the controlled substance was within the (defendant's) presence.[end strikethrough] exercised control or ownership over the drug paraphernalia itself.

Joint possession.

Possession of drug paraphernalia may be sole or joint, that is, two or more persons may be aware of the presence of the drug paraphernalia and may jointly [begin strikethrough]possess an article, exercising[end strikethrough] exercise control over it. In that case, each of those persons is considered to be in possession of [begin strikethrough]that article,[end strikethrough] the drug paraphernalia.

[begin strikethrough]If a person has exclusive possession of paraphernalia, knowledge of its presence may be inferred or assumed.[end strikethrough]

[begin strikethrough]If a person does not have exclusive possession of paraphernalia, knowledge of its presence may not be inferred or assumed.[end strikethrough]

Inferences.

Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).

If you find that (defendant):

a. had direct physical custody of the drug paraphernalia, [or]

b. was within ready reach of the drug paraphernalia and the drug paraphernalia was under [his] [her] control, [or]

c. had exclusive control of the place where the drug paraphernalia was located, you may infer that [he] [she] was aware of the presence of the drug paraphernalia and had the ability to control it.

If (defendant) did not have exclusive control over the place where drug paraphernalia was located, you may not infer [he] [[she] had knowledge of the presence of the drug paraphernalia or the ability to control it, in the absence of other incriminating evidence.

Give if applicable. Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).

However, you may infer that (defendant) knew of the presence of the drug paraphernalia and had the ability to control it if [he] [she] had joint control over the place where the drug paraphernalia was located, and the drug paraphernalia was located in a common area in plain view and in the presence of the defendant.

Drug Paraphernalia. [section] 893.145, Fla. Stat.

The term "drug paraphernalia" means all equipment, products, and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter. It includes, but is not limited to:

Give specific definition as applicable.

1. Kits used, intended for use, or designed for use in planting, propagating, cultivating, growing, or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived.

2. Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances.

3. Isomerization devices used, intended for use, or designed for use in increasing the potency of any species of plant which is a controlled substance.

4. Testing equipment used, intended for use, or designed for use in identifying, or in analyzing the strength, effectiveness, or purity of, controlled substances.

5. Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances.

6. Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose, and lactose used, intended for use, or designed for use in cutting controlled substances.

7. Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, cannabis.

8. Blenders, bowls, containers, spoons, and mixing devices used, intended for use, or designed for use in compounding controlled substances.

9. Capsules, balloons, envelopes, and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances.

10. Containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances.

11. Hypodermic syringes, needles, and other objects used, intended for use, or designed for use in parenterally injecting controlled substances into the human body.

12. Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing cannabis, cocaine, hashish, or hashish oil into the human body, such as:

a. Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls.

b. Water pipes.

c. Carburetion tubes and devices.

d. Smoking and carburetion masks.

e. Roach clips: meaning objects used to hold burning material, such as a cannabis cigarette, that has become too small or too short to be held in the hand.

f. Miniature cocaine spoons, and cocaine vials.

g. Chamber pipes.

h. Carburetor pipes.

i. Electric pipes.

j. Air-driven pipes.

k. Chillums.

l. Dongs.

m. Ice pipes or chillers.

Relevant factors. [section] 893.146, Fla. Stat. In addition to all other logically relevant factors, the following factors shall be considered in determining whether an object is drug paraphernalia:

1. Statements by an owner or by anyone in control of the object concerning its use.

2. The proximity of the object, in time and space, to a direct violation of this act.

3. The proximity of the object to controlled substances.

4. The existence of any residue of controlled substances on the object.

5. Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom [he] [she] knows, or should reasonably know, intend to use the object to facilitate a violation of this act. The innocence of an owner, or of anyone in control of the object, as to a direct violation of this act shall not prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia.

6. Instructions, oral or written, provided with the object concerning its use.

7. Descriptive materials accompanying the object which explain or depict its use.

8. Any advertising concerning its use.

9. The manner in which the object is displayed for sale.

10. Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products.

11. Direct or circumstantial evidence of the ratio of sales of the object or objects to the total sales of the business enterprise.

12. The existence and scope of legitimate uses for the object in the community.

13. Expert testimony concerning its use.

[begin strikethrough]Knowledge of the illicit nature of the controlled substance. Give if applicable. [section] 893.101(2) and (3), Fla. Stat.[end strikethrough]

[begin strikethrough]Knowledge of the illicit nature of the controlled substance is not an element of the offense of (insert name of offense charged). Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense. (Defendant) has raised this affirmative defense. However, you are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that (defendant) was in actual or constructive possession of the controlled substance.[end strikethrough]

[begin strikethrough]If from the evidence you are convinced that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find (defendant) guilty.[end strikethrough]

[begin strikethrough]If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find (defendant) not guilty.[end strikethrough]

Lesser Included Offenses
POSSESSION OF DRUG PARAPHERNALIA--893.147(1)

CATEGORY ONE   CATEGORY TWO   FLA. STAT.   INS. NO.

None

               Attempt        777.04(1)    5.1


Comment

This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], 1992 [603 So. 2d 1175], 1997 [697 So. 2d 84], and 2007 [969 So. 2d 245] and 2013. [begin strikethrough]See also SC03-629 [869 So. 2d 1205 (Fla. 2004)].[end strikethrough]

25.15 [begin strikethrough]DRUG ABUSE--[end strikethrough]DELIVERY, POSSESSION WITH INTENT TO DELIVER, OR MANUFACTURE WITH

INTENT TO DELIVER DRUG PARAPHERNALIA

[section] 893.147(2), Fla. Stat.

To prove the crime of (crime charged), the State must prove the following [begin strikethrough](applicable number)[end strikethrough] three elements beyond a reasonable doubt:

1. (Defendant) [delivered] [possessed with intent to deliver] [manufactured with intent to deliver] drug paraphernalia.

[begin strikethrough][delivered][end strikethrough]

[begin strikethrough][possessed with intent to deliver][end strikethrough]

[begin strikethrough][manufactured with intent to deliver][end strikethrough]

[begin strikethrough]drug paraphernalia.[end strikethrough]

[begin strikethrough]Give only if possession is charged.[end strikethrough]

2. (Defendant) had knowledge of the presence of the drug paraphernalia.

3. (Defendant) knew or reasonably should have known that the drug paraphernalia would be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce a controlled substance into the human body [begin strikethrough](specific substance alleged)[end strikethrough].

Definitions.

Possession. Give if possession with intent to deliver is charged.

[begin strikethrough]To "possess" means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed.[end strikethrough]

[begin strikethrough]Possession may be actual or constructive.[end strikethrough]

There are two ways to exercise control: actual possession and constructive possession.

Actual possession.

Actual possession of drug paraphernalia means the person is aware of the presence of the paraphernalia and:

a. The drug paraphernalia is in the hand of or on the person, or

b. The drug paraphernalia is in a container in the hand of or on the person, or

c. The drug paraphernalia is so close as to be within ready reach and is under the control of the person.

[begin strikethrough]Give if applicable.[end strikethrough]

Mere proximity to a paraphernalia is not sufficient to establish control over that controlled substance when it is not in a place over which the person has control.

Constructive possession.

Constructive possession of drug paraphernalia means the person is aware of the presence of the drug

paraphernalia, the drug paraphernalia is in a place over which the [begin strikethrough](defendant)[end strikethrough] person has control, and the person has the ability to control the drug paraphernalia [begin strikethrough]or in which the (defendant) has concealed it.[end strikethrough]

Give if applicable.

Mere proximity to drug paraphernalia is not sufficient to establish control over that drug paraphernalia when the drug paraphernalia is in a place that the person does not control.

Give if applicable.

In order to establish (defendant's) constructive possession of [begin strikethrough]a controlled substance if the controlled substance[end strikethrough] drug paraphernalia that was [begin strikethrough]is[end strikethrough] in a place [begin strikethrough]over which the (defendant)[end strikethrough] [he] [she] [begin strikethrough]does[end strikethrough] did not [begin strikethrough]have[end strikethrough] control, the State must prove [begin strikethrough]the--[end strikethrough]defendant's) (1) knew that the drug paraphernalia was within [his] [her] presence [begin strikethrough]has the control over the controlled substance[end strikethrough] and (2) [begin strikethrough]knowledge that the controlled substance was within the (defendant's) presence[end strikethrough] exercised control or ownership over the drug paraphernalia itself

Joint possession.

Possession of drug paraphernalia may be sole or joint, that is, two or more persons may be aware of the presence of the drug paraphernalia and may jointly [begin strikethrough]possess an article, exercising[end strikethrough] exercise control over it. In that case, each of those persons is considered to be in possession of [begin strikethrough]that article[end strikethrough] the drug paraphernalia.

[begin strikethrough]If a person has exclusive possession of a paraphernalia. knowledge of its presence may be inferred or assumed.[end strikethrough]

[begin strikethrough]If a person does not have exclusive possession of a paraphernalia. knowledge of its presence may not be inferred or assumed.[end strikethrough]

Inferences.

Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).

If you find that (defendant):

a. had direct physical custody of drug paraphernalia. [or]

b. was within ready reach of drug paraphernalia and the drug paraphernalia was under [his] [her] control. [or]

c. had exclusive control of the place where drug paraphernalia was located.

you may infer that [he] [she] was aware of the presence of the drug paraphernalia and had the ability to control it.

If (defendant) did not have exclusive control over the place where the drug paraphernalia was located, you may not infer [he] [[she] had knowledge of the presence of the drug paraphernalia or the ability to control it, in the absence of other incriminating evidence.

Give if applicable. See Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).

However, you may infer that (defendant) knew of the presence of the drug paraphernalia and had the ability to control it if [he] [she] had joint control over the place where the drug paraphernalia was located. and the drug paraphernalia was located in a common area in plain view and in the presence of the defendant.

[begin strikethrough]Deliver. Give if delivery is charged. [section] 893.02(5), Fla.Stat.[end strikethrough]

[begin strikethrough]"Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of paraphernalia, whether or not there is an agency relationship.[end strikethrough]

[begin strikethrough]Manufacture. Give if manufacture is charged. [section] 893.02(13)(a), Fla.Stat.[end strikethrough]

[begin strikethrough]"Manufacture" means the production, preparation, packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis. It can also be by a combination of extraction and chemical synthesis.[end strikethrough]

Drug Paraphernalia. [section] 893.145, Fla. Stat.

The term "drug paraphernalia" means all equipment, products, and materials of any kind which are used, intended for use, or designed for use in planting, propagating. cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging. repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter. It includes, but is not limited to:

Give specific definition as applicable.

1. Kits used, intended for use, or designed for use in planting, propagating. cultivating, growing, or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived.

2. Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances.

3. Isomerization devices used, intended for use, or designed for use in increasing the potency of any species of plant which is a controlled substance.

4. Testing equipment used, intended for use, or designed for use in identifying, or in analyzing the strength, effectiveness, or purity of, controlled substances.

5. Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances.

6. Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose, and lactose used, intended for use, or designed for use in cutting controlled substances.

7. Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, cannabis.

8. Blenders, bowls, containers, spoons, and mixing devices used, intended for use, or designed for use in compounding controlled substances.

9. Capsules, balloons, envelopes, and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances.

10. Containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances.

11. Hypodermic syringes, needles, and other objects used, intended for use, or designed for use in parenterally injecting controlled substances into the human body.

12. Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing cannabis, cocaine, hashish, or hashish oil into the human body, such as:

a. Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls.

b. Water pipes.

c. Carburetion tubes and devices.

d. Smoking and carburetion masks.

e. Roach clips: meaning objects used to hold burning material, such as a cannabis cigarette, that has become too small or too short to be held in the hand.

f. Miniature cocaine spoons, and cocaine vials.

g. Chamber pipes.

h. Carburetor pipes.

i. Electric pipes.

j. Air-driven pipes.

k. Chillums.

l. Bongs.

m. Ice pipes or chillers.

Relevant factors, [section] 893.146, Fla. Stat.

In addition to all other logically relevant factors, the following factors shall be considered in determining whether an object is drug paraphernalia:

1. Statements by an owner or by anyone in control of the object concerning its use.

2. The proximity of the object, in time and space, to a direct violation of this act.

3. The proximity of the object to controlled substances.

4. The existence of any residue of controlled substances on the object.

5. Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object. to deliver it to persons whom [he] [she] knows, or should reasonably know, intend to use the object to facilitate a violation of this act. The innocence of an owner, or of anyone in control of the object, as to a direct violation of this act shall not prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia.

6. Instructions, oral or written, provided with the object concerning its use.

7. Descriptive materials accompanying the object which explain or depict its use.

8. Any advertising concerning its use.

9. The manner in which the object is displayed for sale.

10. Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products.

11. Direct or circumstantial evidence of the ratio of sales of the object or objects to the total sales of the business enterprise.

12. The existence and scope of legitimate uses for the object in the community.

13. Expert testimony concerning its use.

[begin strikethrough]Knowledge of the illicit nature of the controlled substance. Give if applicable. [section] 893.101(2) and (3), Fla. Stat.[end strikethrough]

[begin strikethrough]Knowledge of the illicit nature of the controlled substance is not an element of the offense of (insert name of offense charged). Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense. (Defendant) has raised this affirmative defense. However, you are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that (defendant) was in actual or constructive possession of the controlled substance.[end strikethrough]

[begin strikethrough]If from the evidence you are convinced that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find (defendant) guilty.[end strikethrough]

[begin strikethrough]If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find (defendant) not guilty.[end strikethrough]

Lesser Included Offenses
DELIVERY. POSSESSION WITH INTENT TO DELIVER. OR MANUFACTURE WITH
INTENT TO DELIVER DRUG PARAPHERNALIA--893.147(2)

CATEGORY ONE            CATEGORY TWO           FLA. STAT.   INS. NO.

[begin strikethrough]                          893.147(1)   25.14
None[end
strikethrough]
Possession of Drug
Paraphernalia, if
Possession of Drug
Paraphernalia with
Intent is charged

                        Attempt, [begin        777.04(1)    5.1
                        strikethrough]except
                        when delivery is
                        charged[end
                        strikethrough]


Comment

This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], [begin strikethrough]and-[end strikethrough]2007 [969 So. 2d 245], and 2013. [begin strikethrough]See also SC03-629 [869 So. 2d 1205 (Fla. 2004)][end strikethrough].

25.16 [begin strikethrough]DRUG ABUSE--[end strikethrough]DELIVERY OF DRUG PARAPHERNALIA TO A MINOR [section] 893.147(3)(a), Fla. Stat.

To prove the crime of Delivery of Drug Paraphernalia to a Minor. the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) delivered drug paraphernalia to (person alleged).

2. (Defendant) knew or reasonably should have known that the drug paraphernalia would be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce a controlled substance into the human body (specific substance alleged).

3. When the delivery was made, (defendant) was 18 years old or over and (person alleged) was under 18 years old.

Definitions.

[begin strikethrough]Deliver, [section] 893.02)(5), Fla. Stat.[end strikethrough]

[begin strikethrough]"Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of paraphernalia, whether or not there is an agency relationship.[end strikethrough]

Drug Paraphernalia, [section] 893.145, Fla. Stat.

The term "drug paraphernalia" means all equipment, products, and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter. It includes, but is not limited to:

1. Kits used, intended for use, or designed for use in planting, propagating, cultivating, growing, or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived,

2. Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances.

3. Isomerization devices used, intended for use, or designed for use in increasing the potency of any species of plant which is a controlled substance.

4. Testing equipment used, intended for use, or designed for use in identifying, or in analyzing the strength, effectiveness, or purity of, controlled substances.

5. Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances.

6. Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose, and lactose used, intended for use, or designed for use in cutting controlled substances.

7. Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, cannabis.

8. Blenders, bowls, containers, spoons, and mixing devices used, intended for use, or designed for use in compounding controlled substances.

9. Capsules, balloons, envelopes, and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances.

10. Containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances.

11. Hypodermic syringes, needles, and other objects used, intended for use, or designed for use in parenterally injecting controlled substances into the human body.

12. Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing cannabis, cocaine, hashish, or hashish oil into the human body, such as:

a. Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls.

b. Water pipes.

c. Carburetion tubes and devices.

d. Smoking and carburetion masks.

e. Roach clips: meaning objects used to hold burning material, such as a cannabis cigarette, that has become too small or too short to be held in the hand.

f. Miniature cocaine spoons, and cocaine vials.

g. Chamber pipes.

h. Carburetor pipes.

i. Electric pipes.

j. Air-driven pipes.

k. Chillums.

l. Bongs.

m. Ice pipes or chillers. Relevant factors. [section] 893.146, Fla. Stat.

In addition to all other logically relevant factors, the following factors shall be considered in determining whether an object is drug paraphernalia:

1. Statements by an owner or by anyone in control of the object concerning its use.

2. The proximity of the object, in time and space, to a direct violation of this act.

3. The proximity of the object to controlled substances.

4. The existence of any residue of controlled substances on the object.

5. Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of this act. The innocence of an owner, or of anyone in control of the object. as to a direct violation of this act shall not prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia.

6. Instructions, oral or written, provided with the object concerning its use.

7. Descriptive materials accompanying the object which explain or depict its use.

8. Any advertising concerning its use.

9. The manner in which the object is displayed for sale.

10. Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products.

11. Direct or circumstantial evidence of the ratio of sales of the object or objects to the total sales of the business enterprise.

12. The existence and scope of legitimate uses for the object in the community.

13. Expert testimony concerning its use.

[begin strikethrough]Knowledge of the illicit nature of the controlled substance. Give if applicable. [section] 893.101(2) and (3), Fla. Stat.[end strikethrough]

[begin strikethrough]Knowledge of the illicit nature of the controlled substance is not an element of the offense of (insert name of offense charged). Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense. (Defendant) has raised this affirmative defense. However, you are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that (defendant) was in actual or constructive possession of the controlled substance.[end strikethrough]

[begin strikethrough]If from the evidence you are convinced that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find (defendant) guilty.[end strikethrough]

[begin strikethrough]If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find (defendant) not guilty.[end strikethrough]

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 1981 and amended in 2007 [969 So. 2d 245] and 2013.

25.17 CONTRABAND IN COUNTY DETENTION FACILITY [section] 951.22, Fla.Stat.

To prove the crime of [begin strikethrough](crime charged)[end strikethrough] Contraband in a County Detention Facility, the State must prove the following two three elements beyond a reasonable doubt:

1. (Defendant) had knowledge of the presence of an item.

[begin strikethrough][introduced contraband into][end strikethrough]

[begin strikethrough][knowingly possessed contraband in][end strikethrough]

[begin strikethrough][gave contraband to an inmate in][end strikethrough]

[begin strikethrough][received contraband from an inmate in][end strikethrough]

[begin strikethrough][took contraband from][end strikethrough]

[begin strikethrough][attempted to take or send contraband from] a county detention facility.[end strikethrough]

2. (Defendant) [begin strikethrough]did not do so through regular channels as duly authorized by the Sheriff or officer in charge of the facility.[end strikethrough]

Give as applicable.

a. introduced the item into a county detention facility.

b. possessed the item upon the grounds of a county detention facility.

c. gave the item to an inmate of a county detention facility.

d. received the item from an inmate of a county detention facility.

e. took the item from a county detention facility.

f. attempted to [take] [send] the item from a county detention facility.

3. The item was: Give as applicable.

a written communication to give to or receive from an inmate.

b. a recorded communication to give to or receive from an inmate.

c. currency or coin to give to or receive from an inmate.

d. an article of [food] [clothing] to give to or receive from an inmate.

e. a tobacco product.

f. a cigarette.

g. a cigar.

h. a beverage that causes or may cause an intoxicating effect.

i. a narcotic, hypnotic, or excitative drug or drug of any kind or nature.

j. a controlled substance.

k. a firearm.

l. any instrumentality customarily used or which is intended to be used as a dangerous weapon.

m. any instrumentality of any nature that may be or is intended to be used as an aid in effecting or attempting to effect an escape from a county facility.

[begin strikethrough]The court now instructs you that I'm purposes of this offense, "contraband" means:[end strikethrough]

[begin strikethrough]Select definition depending upon item alleged.[end strikethrough]

[begin strikethrough][any currency or coin][end strikethrough]

[begin strikethrough][any article of food or clothing][end strikethrough]

[begin strikethrough][any written or recorded communication][end strikethrough]

[begin strikethrough][any intoxicating beverage or beverage which causes or may cause an intoxicating effect][end strikethrough]

[begin strikethrough][any narcotic, hypnotic, or excitative drug][end strikethrough]

[begin strikethrough][any drug of any kind, including nasal inhalators][end strikethrough]

[begin strikethrough][sleeping pill, barbiturate][end strikethrough]

[begin strikethrough][any controlled substance. [(Item alleged)] is a controlled substance][end strikethrough]

[begin strikethrough][any firearm][end strikethrough]

[begin strikethrough][any instrumentality that may be or is intended to be used as a dangerous weapon][end strikethrough]

[begin strikethrough][any instrumentality that may be or is intended to be used as an aid in attempting to escape].[end strikethrough]

Definitions.

Give in all cases. [section] 951.23(1)(a) Fla. Stat.

"County detention facility" means a county jail, a county stockade, [begin strikethrough]a county work camp,[end strikethrough] a county prison camp, a county residential probation center, and any other place except a municipal detention facility used by a county or county officer for the detention of persons charged with or convicted of either felony or misdemeanor [begin strikethrough]used by a country officer to detain persons charged with or convicted of crimes, including the grounds thereof.[end strikethrough]

[section] 951.23(1)(b) Fla. Stat.

"County residential probation center" means a county-operated facility housing offenders serving misdemeanor sentences or first-time felony sentences.

[section] 951.23(1)(d) Fla. Stat.

"Municipal detention facility" means a city jail, a city stockade, a city prison camp, and any other place except a county detention facility used by a municipality or municipal officer for the detention of persons charged with or convicted of violation of municipal laws or ordinances.

[begin strikethrough]In event of municipal facility involved, see statute.[end strikethrough]

[begin strikethrough]Definition.[end strikethrough] Give as applicable.

To "introduce" means to put inside or into.

Give when the evidence involves an inmate who is not in the facility.

It is unlawful to [give] [receive] a contraband item [to] [from] an inmate of a county detention facility even if the inmate was outside the facility at the time the contraband item was [given] [received]. Give if clothing is alleged. State v. Becton, 665 So. 2d 358 (Fla. 5th DCA 1995).

"Clothing" means things worn to cover the body and limbs. Give if currency is alleged. State v. Becton, 665 So. 2d 358 (Fla. 5th DCA 1995).

"Currency" means money or another commodity which is in circulation as a medium of exchange.

Give if weapon is alleged. State v. Fleming, 606 So. 2d 1229 (Fla. 1- DCA 1992).

A "weapon" is an instrument that is designed and constructed for use as a weapon, or, if the instrument is capable of being used as a weapon, the defendant used, threatened to use, or intended to use the instrument as a weapon.

Give if tobacco product is alleged. [section] 210.25(11) Fla. Stat.

"Tobacco products" means loose tobacco suitable for smoking; snuff; snuff flour; cavendish; plug and twist tobacco; fine cuts and other chewing tobaccos; shorts; refuse scraps; clippings, cuttings, and sweepings of tobacco, and other kinds and forms of tobacco prepared in such manner as to be suitable for chewing; but "tobacco products" does not include cigarettes or cigars.

Give if cigarette is alleged. [section] 210.01(1) Fla. Stat.

"Cigarette" means any roll for smoking, except one of which the tobacco is fully naturally fermented, without regard to the kind of tobacco or other substances used in the inner roll or the nature or composition of the material in which the roll is wrapped, which is made wholly or in part of tobacco irrespective of size or shape and whether such tobacco is flavored, adulterated or mixed with any other ingredient.

Give if a drug or controlled substance is alleged.

A "drug of any kind" includes [nasal inhalators] [sleeping pills] [barbiturates] [a controlled substance].

(Name of drug or controlled substance) is a [drug] [controlled substance]. Give if firearm is alleged. [section] 790.001(6) Fla. Stat.

"Firearm" means any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive [;the frame or receiver of any such weapon] [any firearm muffler or firearm silencer] [any destructive device] [any machine gun].

Give if possession is alleged.

There are two ways to exercise control: actual possession and constructive possession.

Actual possession.

Actual possession means the person is aware of the presence of the object and

a. the object is in the hand of or on the person, or

b. the object is in a container in the hand of or on the person, or

c. the object is so close as to be within ready reach and is under the control of the person.

Constructive possession.

Constructive possession means the person is aware of the presence of the object, the object is in a place over which the person has control, and the person has the ability to control the object.

Give if applicable.

Mere proximity to an object is not sufficient to establish control over that object when the object is in a place that the person does not control.

Give if applicable.

In order to establish (defendant's) constructive possession of an object that was in a place [he] [she] did not control, the State must prove (defendant) (1) knew that the object was within [his] [her] presence and (2) exercised control or ownership over the object itself.

Joint possession.

Possession of an object may be sole or joint, that is, two or more persons may be aware of the presence of an object and may jointly exercise control over it. In that case, each of those persons is considered to be in possession of that object.

Inferences.

Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).

If you find that (defendant):

a. had direct physical custody of the object, [or]

b. was within ready reach of the object and the object was under [his] [her] control, [or]

c. had exclusive control of the place where the object was located, you may infer that [he] [she] was aware of the presence of the substance and had the ability to control it.

If (defendant) did not have exclusive control over the place where an object was located, you may not infer [he] [[she] had knowledge of the presence of the object or the ability to control it, in the absence of other incriminating evidence.

Give if applicable. Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).

However, you may infer that (defendant) knew of the presence of the object and had the ability to control it if [he] [she] had joint control over the place where the object was located, and the object was located in a common area in plain view and in the presence of the defendant.

Affirmative defense: Lack of knowledge of illicit nature. [section] 893.101(2) Fla. Stat. Give if applicable.

Lack of knowledge of the illicit nature of a controlled substance is a defense to possession of a controlled substance. Accordingly, the defendant is not guilty of possessing a controlled substance if [he] [she] did not know of the illicit nature of the substance.

You are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance

if you find that [he] [she] knew of the presence of the substance and exercised management, control, or ownership over the substance.

If you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find [him] [her] guilty.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [him] [her] not guilty of possession of a controlled substance.

Affirmative defense of permission. Give ifthe defendant has satisfied his or her burden of production. See Wright v. State, 442 So. 2d 1058 (Fla. 1st DCA 1983).

It is a defense to the crime of Contraband in a County Detention Facility if the defendant used regular channels and was authorized by the sheriff or officer in charge of the detention facility to [introduce][possess] [give][receive][take][attempt to take or send] the contraband item [into] [from] the facility. The defendant has raised this defense.

If you have a reasonable doubt as to whether the defendant used regular channels and had authorization from the sheriff or officer in charge of the detention facility, you should find [him] [her] not guilty.

If the State proved beyond a reasonable doubt that the defendant did not use regular channels or did not have authorization from the sheriff or officer in charge of the detention facility, you should find [him] [her] guilty, if all the elements of the charge have also been proven beyond a reasonable doubt.

[begin strikethrough]See 25.2 for definition of "possession."[end strikethrough]

Lesser Included Offenses
CONTRABAND IN COUNTY DETENTION FACILITIES--951.22

CATEGORY ONE         CATEGORY TWO         FLA. STAT.         INS. NO.

[begin                                    893.13(6)          25.7
strikethrough]
None[end
strikethrough]
Possession of a
Controlled
Substance if a
controlled
substance is the
contraband alleged

                     [begin               [begin
                     strikethrough]       strikethrough]
                     Possession of        893.13(6)(b)[end
                     less than 20 grams   strikethrough]
                     of cannabis[end
                     strikethrough]

                     Carrying a           790.01(2)          10.1
                     Concealed Firearm

                     Carrying a           790.01(1)          10.1
                     Concealed Weapon

                     Attempt              777.04(1)          5.1


Comment

This instruction was adopted in 1987 and amended in 1989 [543 So. 2d 1205], and 2013.

25.18 CONTRABAND IN JUVENILE [DETENTION FACILITY] [COMMITMENT PROGRAM]

[section] [begin strikethrough]985.4046[end strikethrough] 985.711, Fla. Stat.

To prove the crime of [begin strikethrough][introducing] [removing] [possession] of contraband in a juvenile detention facility[end strikethrough] Contraband in Juvenile [Detention Facility][Commitment Program], the State must prove the following two three elements beyond a reasonable doubt:

1. (Defendant) had knowledge of the presence of an item.

[begin strikethrough][introduced contraband into][end strikethrough]

[begin strikethrough][knowingly possessed contraband in][end strikethrough]

[begin strikethrough][gave contraband to a juvenile offender in][end strikethrough]

[begin strikethrough][took contraband from][end strikethrough]

[begin strikethrough][attempted to take or send contraband from][end strikethrough]

[begin strikethrough][sent contraband to][end strikethrough]

[begin strikethrough]a [juvenile detention facility! [juvenile commitment program].[end strikethrough]

2. (Defendant) [begin strikethrough]did not do so as authorized by the [program policy] [operating procedure] [facility superintendent] [program director] [manager].[end strikethrough]

Give as applicable.

a. possessed an item while upon the grounds of a juvenile [detention facility] [commitment program].

b. introduced the item into or upon the grounds of a juvenile [detention facility] [commitment program].

c. [took] [attempted to take] [sent] [attempted to send] an item from a juvenile [detention facility] [commitment program].

d. [transmitted] [attempted to transmit] an item to a juvenile offender into or upon the grounds of a juvenile [detention facility] [commitment program].

e. [caused][attempted to cause] an item to be [transmitted to] [received by] a juvenile offender upon the grounds of a juvenile [detention facility] [commitment program].

3. The item was: Give as applicable.

a. an unauthorized article of [food] [clothing].

b. a beverage that causes or may cause an intoxicating effect.

c. controlled substance. (Name of controlled substance alleged) is a controlled substance.

d. a prescription or nonprescription drug that has a hypnotic, stimulating, or depressing effect.

e. a firearm.

f. a weapon of any kind.

g. an explosive substance. Definitions. Give as applicable.

[section] 985.03(19), Fla. Stat.

A "juvenile detention facility" is a facility used pending court adjudication or disposition or execution of a court order for the temporary care of a child alleged or found to have committed a violation of law. A "juvenile commitment program" is a facility used for the commitment of adjudicated delinquents. "Introduce" means to put inside or into.

Give if clothing is alleged. State v. Becton, 665 So. 2d 358 (Fla. 5th DCA 1995). "Clothing" means things worn to cover the body and limbs.

Give if weapon is alleged. State v. Fleming, 606 So. 2d 1229 (Fla. 1st DCA 1992).

A "weapon" is an instrument that is designed and constructed for use as a weapon, or, if the instrument is capable of being used as a weapon, the defendant used, threatened to use, or intended to use the instrument as a weapon.

Give if firearm is alleged. [section] 790.001(6) Fla. Stat.

"Firearm" means any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive [;the frame or receiver of any such weapon] [any firearm muffler or firearm silencer] [any destructive device] [any machine gun].

Give if possession is alleged.

There are two ways to exercise control: actual possession and constructive possession.

Actual possession.

Actual possession means the person is aware of the presence of the object and

a. the object is in the hand of or on the person, or

b. the object is in a container in the hand of or on the person, or

c. the object is so close as to be within ready reach and is under the control of the person.

Constructive possession.

Constructive possession means the person is aware of the presence of the object, the object is in a place over which the person has control, and the person has the ability to control the object.

Give if applicable.

Mere proximity to an object is not sufficient to establish control over that object when the object is in a place that the person does not control.

Give if applicable.

In order to establish (defendant's) constructive possession of an object that was in a place [he] [she] did not control, the State must prove (defendant) (1) knew that the object was within [his] [her] presence and (2) exercised management, control, or ownership over the object itself .

Joint possession.

Possession of an object may be sole or joint, that is, two or more persons may be aware of the presence of an object and may jointly exercise control over it. In that case, each of those persons is considered to be in possession of that object.

Inferences.

Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).

If you find that (defendant):

a. had direct physical custody of the object, [or]

b. was within ready reach of the object and the object was under [his] [her] control, [or]

c. had exclusive control of the place where the object was located, you may infer that [he] [she] was aware of the presence of the substance and had the ability to control it.

If (defendant) did not have exclusive control over the place where an object was located, you may not infer [he] [[she] had knowledge of the presence of the object or the ability to control it, in the absence of other incriminating evidence.

Give if applicable. Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).

However, you may infer that (defendant) knew of the presence of the object and had the ability to control it if [he] [she] had joint control over the place where the object was located. and the object was located in a common area in plain view and in the presence of the defendant.

Affirmative defense: Lack of knowledge of illicit nature. [section] 893.101(2) Fla. Stat. Give if applicable.

Lack of knowledge of the illicit nature of a controlled substance is a defense to possession of a controlled substance. Accordingly, the defendant is not guilty of possessing a controlled substance if [he] [she] did not know of the illicit nature of the substance.

You are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that [he] [she] knew of the presence of the substance and exercised control or ownership over the substance.

If you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find [him] [her] guilty.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [him] [her] not guilty of possession of a controlled substance.

Affirmative defense of permission. Give if the defendant has satisfied his or her burden of production. See Wright v. State, 442 So. 2d 1058 (Fla. 1st DCA 1983).

It is a defense to the crime of Contraband in Juvenile [Detention Facility] [Commitment Program] if the defendant was authorized through program policy or operating procedure or had the permission of the facility superintendent, program director, or manager of the [detention facility] [commitment program] to [possess] [introduce] [take] [attempt to take] [send] [attempt to send] [transmit] [attempt to transmit] [cause to transmit] [attempt to cause to transmit] the contraband item [into] [from] the facility. The defendant has raised this defense.

If you have a reasonable doubt as to whether the defendant was authorized through program policy or operating procedure or had the permission of the facility superintendent. program director, or manager of the [detention facility] [commitment program], you should find [him] [her] not guilty of Contraband in a Juvenile [Detention Facility] [Commitment Program].

If the State proved beyond a reasonable doubt that the defendant did not have authorization through program policy or operating procedure or did not have the permission of the facility superintendent, program director, or manager of the [detention facility] [commitment program], you should find [him] [her] guilty, if all the elements of the charge have also been proven beyond a reasonable doubt.

[begin strikethrough]"Introduce" means to put inside or into.[end strikethrough]

[begin strikethrough]Possession[end strikethrough]

[begin strikethrough]Possession may be actual or constructive.[end strikethrough]

[begin strikethrough]Actual possession means:[end strikethrough]

[begin strikethrough]a. The thing is in the hand of or on the person, or[end strikethrough]

[begin strikethrough]b. The thing is in a container in the hand of or on the person, or[end strikethrough]

[begin strikethrough]c. The thing is so close as to be within ready reach and is under the control of the person.[end strikethrough]

[begin strikethrough]Give if applicable.[end strikethrough]

[begin strikethrough]Mere proximity to a thing is not sufficient to establish control over that thing when the thing is not in a place over which the person has control.[end strikethrough]

[begin strikethrough]Constructive possession means the thing is in a place over which the person has control, or in which the person has concealed it.[end strikethrough]

[begin strikethrough]Give if applicable. See Chicone v. State, 684 So.2d 736 (Fla. 1996).[end strikethrough]

[begin strikethrough]If a thing is in a place over which the person does not have control. in order to establish constructive possession the State must prove the person's (1) control over the thing. (2) knowledge that the thing was within the person's presence, and (3) knowledge of the illicit nature of the thing.[end strikethrough]

[begin strikethrough]For purposes of this offense. "contraband" means:[end strikethrough]

[begin strikethrough][any unauthorized article of food or clothing][end strikethrough]

[begin strikethrough][any intoxicating beverage or any beverage that causes or may cause an intoxicating effect![end strikethrough]

[begin strikethrough][any controlled substance. (Substance alleged) is a controlled substance.! See [section] 893.02(4), Fla. Stat.[end strikethrough]

[begin strikethrough][any prescription or nonprescription drug that has a hypnotic, stimulating, or depressing effect][end strikethrough]

[begin strikethrough][any firearm or weapon of any kind or any explosive substance].[end strikethrough]

[begin strikethrough]Give as applicable.[end strikethrough]

[begin strikethrough]A "juvenile detention facility" is a facility used pending court adjudication or disposition or execution of a court order for the temporary care of a child alleged or found to have committed a violation of law.[end strikethrough]

[begin strikethrough]A "juvenile commitment program" is a facility used for the commitment of adjudicated delinquents.[end strikethrough]
Lesser Included Offenses

CONTRABAND IN JUVENILE FACILITY--985.4046

CATEGORY ONE   CATEGORY TWO               FLA. STAT.   INS. NO.

None

               Attempt (although some     777.04(1)    5.1
               attempts are included as
               elements)


Comment

[begin strikethrough]This instruction is based on the text of [section] 985.4046, Fla.Stat. (1997). In Chicone v. State, 684 So.2d 736 (Fla. 1996), the court defined the elements of constructive possession that apply if the defendant has no control over the place where the contraband was found.[end strikethrough]

This instruction was adopted in March 2000 and was amended in 2013. 25.20 POSSESSION OF CONTRABAND [INl [UPON THEl GROUNDS OF A STATE CORRECTIONAL

INSTITUTION

[section] 944.47(1)(c) Fla. Stat.

To prove the crime of Possession of Contraband [In] [Upon the Grounds of] a State Correctional Facility. the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) possessed

Give as applicable.

a. [written or recorded communication] [currency or coin] [an article of [food][clothing]] that was [given or transmitted] [intended to be given or transmitted] to an inmate of a state correctional institution.

b. [an intoxicating beverage] [a beverage which causes or may cause an intoxicating effect.]

c. a controlled substance. (Name of controlled substance) is a controlled substance.

d. any prescription or non-prescription drug having a hypnotic, stimulating, or depressing effect.

e. [a firearm] [a weapon of any kind] [an explosive substance!.

f. any [cellular telephone] [portable communication device] intentionally and unlawfully introduced inside the secure perimeter of the state correctional institution.

2. At the time. (defendant) was [an inmate] [upon the grounds] of a state correctional facility.

Give in all cases. [section] 944.02(8) Fla. Stat.

"State correctional facility" means 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.

Give if clothing is alleged. State v. Becton, 665 So. 2d 358 (Fla. 5th DCA 1995).

"Clothing" means things worn to cover the body and limbs.

Give if currency is alleged. State v. Becton, 665 So. 2d 358 (Fla. 5,Jh DCA 1995).

"Currency" means money or another commodity which is in circulation as a medium of exchange.

Give if weapon is alleged. State v. Fleming, 606 So. 2d 1229 (Fla. 1- DCA 1992).

A "weapon" is an instrument that is designed and constructed for use as a weapon, or, if the instrument is capable of being used as a weapon, the defendant used, threatened to use, or intended to use the instrument as a weapon.

Give if firearm is alleged. [section] 790.001(6) Fla. Stat.

"Firearm" means any weapon (including a starter gun) which will, is designed to. or may readily be converted to expel a projectile by the action of an explosive [;the frame or receiver of any such weapon] [any firearm muffler or firearm silencer] [any destructive device] [any machine gunL

Give if portable communication device is alleged. [section] 944.47(1)(a)6 Fla. Stat.

The term "portable communication device" means any device carried, worn, or stored which is designed or intended to receive or transmit verbal or written messages, access or store data, or connect electronically to the Internet or any other electronic device and which allows communications in any form. Such devices include, but are not limited to, portable two-way pagers, hand-held radios. cellular telephones. Blackberry-type devices, personal digital assistants or PDA's, laptop computers, or any components of these devices which are intended to be used to assemble such devices. The term also includes any new technology that is developed for similar purposes. [Excluded from this definition is any device having communication capabilities which has been approved or issued by the department for investigative or institutional security purposes or for conducting other state business.]

Possession.

There are two ways to exercise control: actual possession and constructive possession.

Actual possession.

Actual possession means the person is aware of the presence of the object and

a. the object is in the hand of or on the person, or

b. the object is in a container in the hand of or on the person. or

c. the object is so close as to be within ready reach and is under the control of the person.

Constructive possession.

Constructive possession means the person is aware of the presence of the object. the object is in a place over which the person has control. and the person has the ability to control the object.

Give if applicable.

Mere proximity to an object is not sufficient to establish control over that object when the object is in a place that the person does not control.

Give if applicable.

In order to establish (defendant's) constructive possession of an object that was in a place [he] [she] did not control. the State must prove (defendant) (1) knew that the object was within [his] [her] presence and (2) exercised control or ownership over the object itself.

Joint possession.

Possession of an object may be sole or joint, that is, two or more persons may be aware of the presence of an object and may jointly exercise control over it. In that case, each of those persons is considered to be in possession of that object.

Inferences.

Exclusive control. Henderson v. State, 88 So. 3d 1060 (Fla. 1st DCA 2012); Meme v. State, 72 So. 3d 254 (Fla. 4th DCA 2011).

If you find that (defendant):

a. had direct physical custody of the object, [or]

b. was within ready reach of the object and the object was under [his] [her] control, [or]

c. had exclusive control of the place where the object was located, you may infer that [he] [she] was aware of the presence of the substance and had the ability to control it.

If (defendant) did not have exclusive control over the place where an object was located, you may not infer [he] [[she] had knowledge of the presence of the object or the ability to control it, in the absence of other incriminating evidence.

Give if applicable. Duncan v. State, 986 So. 2d 653 (Fla. 4th DCA 2008).

However, you may infer that (defendant) knew of the presence of the object and had the ability to control it if [he] [she] had joint control over the place where the object was located, and the object was located in a common area in plain view and in the presence of the defendant.

Affirmative defense: Lack of knowledge of illicit nature. [section] 893.101(2) Fla. Stat. Give if applicable.

Lack of knowledge of the illicit nature of a controlled substance is a defense to the crime of Possession of a Controlled Substance. Accordingly, the defendant is not guilty of possessing a controlled substance if [he] [she] did not know of the illicit nature of the substance.

You are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that [he] [she] knew of the presence of the substance and exercised control or ownership over the substance.

If you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find [him] [her] guilty.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [him] [her] not guilty of possession of a controlled substance.

Affirmative defense: Authorization. Give if the defendant has satisfied his or her burden of production. See Wright v. State, 442 So. 2d 1058 (Fla. 1st DCA 1983).

It is a defense to the crime of Possession of Contraband [In] [Upon the Grounds of] a State Correctional Facility if the defendant was authorized by the officer in charge of the correctional institution to possess the item [in] [upon the grounds of] a state correctional institution. The defendant has raised this defense.

If you have a reasonable doubt as to whether the defendant had authorization from the officer in charge of the correctional institution, you should find [him] [her] not guilty.

If the State proved beyond a reasonable doubt that the defendant did not have authorization from the officer in charge of the correctional institution, you should find [him] [her] guilty, if all the elements of the charge have also been proven beyond a reasonable doubt.

Lesser Included Offenses
POSSESSION OF CONTRABAND [IN] [UPON THE] GROUNDS OF A STATE
CORRECTIONAL INSTITUTION--944.47(1)(c)

CATEGORY ONE            CATEGORY TWO             FLA. STAT.   INS. NO.

Possession of a                                  893.13       25.7
Controlled Substance,
if a controlled
substance is the
contraband alleged

                        Possession of a          790.23       10.15
                        Firearm or a
                        Concealed Weapon By a
                        Convicted Felon, if a
                        firearm or concealed
                        weapon is the
                        contraband alleged and
                        and the possessor is
                        an inmate.

                        Carrying a Concealed     790.01(2)    10.1
                        Firearm

                        Carrying a Concealed     790.01(1)    10.1
                        Weapon

                        Attempt                  777.04(1)    5.1


Comment

This instruction was adopted in 2013.

25.21 [INTRODUCTION] [REMOVAL] OF CONTRABAND INTO] [FROM] A STATE CORRECTIONAL INSTITUTION

[section] 944.47(1)(a), Fla. Stat.

To prove the crime of [Introduction] [Removal] of Contraband [into] [from] a State Correctional Institution. the State must prove the following [three] [four] elements beyond a reasonable doubt:

1. (Defendant) [introduced into or upon the grounds of] [took] [attempted to [take] [send]] an item [into] [from] a state correctional institution.

2. (Defendant) had knowledge of the presence of the item.

3. The item was: Give as applicable.

a [written] [recorded] communication.

b. [currency] [or] [coin].

c. an article of [food] [clothing].

d. an intoxicating beverage or a beverage which causes or may cause an intoxicating effect.

e. a controlled substance. (Name of controlled substance) is a controlled substance.

f. any prescription or nonprescription drug having a hypnotic, stimulating, or depressing effect.

g. [a firearm] [a weapon of any kind] [an explosive substance].

h. any [cellular telephone] [or] [portable communication device] intentionally and unlawfully introduced inside the secure perimeter of a state correctional institution].

Give element #4 if element #3a, 3b, or 3c is given.

4. (Defendant) [gave or transmitted] [or] [intended to give or transmit] the [written communication] [recorded communication] [currency] [coin] [article of food] [article of clothing] to an inmate of the state correctional institution.

Give in all cases. State Correctional Facility. [section] 944.02(8) Fla. Stat.

"State correctional facility" means 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.

Give if firearm is alleged. [section] 790.001(6) Fla. Stat.

"Firearm" means any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive [;the frame or receiver of any such weapon] [any firearm muffler or firearm silencer] [any destructive device] [any machine gun].

Give if clothing is alleged. State v. Becton, 665 So. 2d 358 (Fla. 5th DCA 1995).

"Clothing" means things worn to cover the body and limbs.

Give if currency is alleged. State v. Becton, 665 So. 2d 358 (Fla. 5th DCA 1995).

"Currency" means money or another commodity which is in circulation as a medium of exchange.

Give if weapon is alleged. State v. Fleming, 606 So. 2d 1229 (Fla. 1st DCA 1992).

A "weapon" is an instrument that is designed and constructed for use as a weapon, or, if the instrument is capable of being used as a weapon, the defendant used, threatened to use, or intended to use the instrument as a weapon.

Give if portable communication device is alleged. [section] 944.47(1)(a)(6) Fla. Stat.

"Portable communication device" means any device carried. worn. or stored which is designed or intended to receive or transmit verbal or written messages, access or store data, or connect electronically to the Internet or any other electronic device and which allows communications in any form. Such devices include, but are not limited to, portable two-way pagers, hand-held radios, cellular telephones, Blackberry-type devices, personal digital assistants or PDA's, laptop computers, or any components of these devices which are intended to be used to assemble such devices. The term also includes any new technology that is developed for similar purposes. [Excluded from this definition is any device having communication capabilities which has been approved or issued by the department for investigative or institutional security purposes or for conducting other state business.]

Affirmative defense: Lack of knowledge of illicit nature. [section] 893.101(2) Fla. Stat. Give if applicable.

Lack of knowledge of the illicit nature of a controlled substance is a defense to this charge. Accordingly, the defendant is not guilty of this charge if [he] [she] did not know of the illicit nature of the controlled substance.

You are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that [he] [she] knew of the presence of the substance and exercised control or ownership over the substance.

If you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proven, you should find [him] [her] guilty.

If you have a reasonable doubt as to whether (defendant) knew of the illicit nature of the controlled substance, you should find [him] [her] not guilty.

Affirmative defense: Authorization. Give if the defendant has satisfied his or her burden of production. See Wright v. State, 442 So. 2d 1058 (Fla. 1st DCA 1983).

It is a defense to the crime of [Introduction] [Removal] of Contraband [into] [from] a State Correctional Institution if the defendant used regular channels and was authorized by the officer in charge of the correctional institution to [introduce][take][send] the item [into] [from] the state correctional institution. The defendant has raised this defense.

If you have a reasonable doubt as to whether the defendant used regular channels and had authorization from the officer in charge of the correctional institution, you should find [him] [her] not guilty.

If the State proved beyond a reasonable doubt that the defendant did not use regular channels or did not have authorization from the officer in charge of the correctional institution, you should find [him] [her] guilty, if all the elements of the charge have also been proven beyond a reasonable doubt.

Lesser Included Offenses
Lesser Included Offenses

[INTRODUCTION] [REMOVAL] OF CONTRABAND [INTO] [FROM] A
STATE CORRECTIONAL INSTITUTION--944.47(1)(a)

CATEGORY ONE            CATEGORY TWO             FLA. STAT.   INS. NO.

Possession of a                                  893.13       25.7
Controlled Substance,
if a controlled
substance is the
contraband alleged

                        Possession of a          790.23       10.15
                        Firearm or a Concealed
                        Weapon By a Convicted
                        Felon, if a firearm or
                        concealed weapon is
                        the contraband alleged
                        and and the possessor
                        is an inmate.

                        Carrying a Concealed     790.01(2)    10.1
                        Firearm

                        Carrying a Concealed     790.01(1)    10.1
                        Weapon


Comment

This instruction was adopted in 2013.
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Title Annotation:Notice
Publication:Florida Bar News
Geographic Code:1U5FL
Date:Dec 15, 2013
Words:30676
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