Northeast Johnson County morning roundup

first_imgSM East Makin’ Waves Swim Clinic set for Jan. 23. Up-and-coming swimmers will have a chance to learn from members of the 2015 6A State Champion boys swimming team from SM East later this month. The third annual Makin’ Waves Swim Clinic will be held this coming Saturday, Jan. 23 at the SM East pool. The clinic is open to boys and girls. The first session, from 10:30 a.m. to noon, will be for kids age 10 and younger. The second session, from noon to 1:30 p.m., will be for kids 11 and older. The cost is $25 per swimmer. You can download the registration flier for the event here.Saint Luke’s specialty clinic coming to Mission Farms. Construction is expected to start in February on a Saint Luke’s Health System clinic that will combine primary care physicians, an urgent care clinic, specialists, pharmacy and x-ray in the same location. [Saint Luke’s plans to put mixed-use clinic in luxury mixed-use development – Kansas City Business Journal]Roeland Park anti-discrimination battle recalled in interview. Elizabeth Andersen was a frequent speaker in favor of the anti-discrimination ordinance passed in Roeland Park after many discussions by the city council. The talks about what communities can learn from that experience in an interview with Camp, a publication for the Kansas City LGBT community. [The Camp 10 – Elizabeth Andersen]Northeast Johnson County morning roundup is brought to you by Twisted Sisters Coffee Shop on Johnson Drive. For updates on the latest blends and specialty drinks available, follow them on Facebook.last_img read more

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Proposed jury instructions

first_img Definitions. Drag race means the operation of two or more motor vehicles from a point side by side at accelerating speeds in a competitive attempt to outdistance each other, or the operation of one or more motor vehicles to the same point, for the purpose of comparing the relative speeds or power of acceleration of such motor vehicle or motor vehicles within a certain distance or time limit. Motor vehicle means any self-propelled vehicle not operated upon rails or guideway, including a motorcycle but not including any bicycle, motorized scooter, electric personal assistive mobility device, or moped. Race means a competition involving the use of one or more motor vehicles in competition, arising from a challenge to demonstrate superiority of a motor vehicle or driver and the acceptance or competitive response to that challenge, either through a prior arrangement or in immediate response, in which the competitor attempts in an attempt to outgain or outdistance another motor vehicle, to prevent another motor vehicle from passing, to arrive at a given destination ahead of another motor vehicle or motor vehicles, or to test the physical stamina or endurance of drivers over long distance driving routes. A race may be prearranged or may occur through a competitive response to conduct on the part of one or more drivers which, under the totality of circumstances, can reasonably be interpreted as a challenge to race, Roadway means that portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the berm or shoulder. In the event a highway includes two or more separate roadways, the term roadway as used herein refers to any such roadway separately, but not to all such roadways collectively. Street or highway means (a) The entire width between the boundary lines of every way or place of whatever nature when any part thereof is open to the use of the public for purposes of vehicular traffic; (b) The entire width between the boundary lines of any privately owned way or place used for vehicular travel by the owner and those having express or implied permission from the owner, but not by other persons, or any limited access road owned or controlled by a special district, whenever, by written agreement entered into under s. 316.006(2)(b) or (3)(b), a county or municipality exercises traffic control jurisdiction over said way or place; (c) Any area, such as a runway, taxiway, ramp, clear zone, or parking lot, within the boundary of any airport owned by the state, a county, a municipality, or a political subdivision, which area is used for vehicular traffic but which is not open for vehicular operation by the general public; or (d) Any way or place used for vehicular traffic on a controlled access basis within a mobile home park recreation district which has been created under s. 418.30 and the recreational facilities of which district are open to the general public. Lesser Included Offenses Does the witness have a general reputation for [dishonesty] [truthfulness]? Was it proved that the general reputation of the witness for telling the truth and being honest was bad? 11. It is entirely proper for a lawyer to talk to a witness about what testimony the witness would give if called to the courtroom. The witness should not be discredited by talking to a lawyer about [his] [her] testimony. You may rely upon your own conclusion about the witness. A juror may believe or disbelieve all or any part of the evidence or the testimony of any witness. Comment Attempt (may be applicable when concealed weapon is charged)777.04(1)5.1 April 30, 2011 Regular News Carrying concealed weapon790.01(1)10.1 Proposed jury instructions This case must not be decided for or against anyone because you feel sorry for anyone, or are angry at anyone. 3.6(g) JUSTIFIABLE USE OF NON-DEADLY FORCE Because there are many defenses applicable to self-defense, give only those parts of the instructions that are required by the evidence. Read in all cases. An issue in this case is whether the defendant acted in self-defense. Give a or b as applicable. It is a defense to the offense with which ( defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of non-deadly force. It is a defense to the crime of (name of crime charged that did not result in injury or death) if the actions of the defendant constituted the justifiable use of non-deadly force. It is a defense to the offense with which (defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of non-deadly force. Definition. “Non-deadly” force means force not likely to cause death or great bodily harm. In defense of person. § 776.012, Fla. Stat. Give if applicable. (Defendant) would be justified in using non-deadly force against (victim) if the following two facts are proved: 1. (Defendant) must have reasonably believed that such conduct was necessary to defend [himself] [herself] [another] against (victim’s) imminent use of unlawful force against the [defendant] [another person]. 2. The use of unlawful force by (victim) must have appeared to (defendant) to be ready to take place. In defense of property. § 776.031, Fla. Stat. Give if applicable. (Defendant) would be justified in using non-deadly force against (victim) if the following three facts are proved: 1. (Victim) must have been trespassing or otherwise wrongfully interfering with land or personal property. 2. The land or personal property must have lawfully been in (defendant’s) possession, or in the possession of a member of [his] [her] immediate family or household, or in the possession of some person whose property [he] [she] was under a legal duty to protect. 3. (Defendant) must have reasonably believed that [his] [her] use of force was necessary to prevent or terminate (victim’s) wrongful behavior. No duty to retreat (dwelling, residence, or occupied vehicle). Give if applicable. If the defendant is in [his] [her] [dwelling] [residence] [occupied vehicle] [he] [she] is presumed to have held a reasonable fear of imminent peril of death or bodily injury to [himself] [herself] [another] if (victim) has [unlawfully and forcibly entered] [has removed or attempted to remove another person against that person’s will from] that [dwelling] [residence] [occupied vehicle] and the defendant had reason to believe that had occurred. The defendant had no duty to retreat under such circumstances. A person who unlawfully and by force enters or attempts to enter another’s [dwelling] [residence] [occupied vehicle] is presumed to be doing so with the intent to commit an unlawful act involving force or violence. No duty to retreat (location other than dwelling, residence, or occupied vehicle). Give if applicable. See Novak v. State 974 So. 2d 520 (Fla. 4 th DCA 2008) regarding unlawful activity. There is no duty to retreat where the defendant was not engaged in any unlawful activity other than the crime(s) for which the defendant asserts the justification. If the defendant [was not engaged in an unlawful activity and] was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat and had the right to stand [his] [her] ground and meet force with force, including deadly force, if [he] [she] reasonably believed that it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another] or to prevent the commission of a forcible felony. Definitions. As used with regard to self defense, “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent or mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night. “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest. “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property. Define applicable forcible felony that defendant alleges victim was about to commit. Give in all cases. A person does not have a duty to retreat if the person is in a place where [he] [she] has a right to be. Aggressor. § 776.041, Fla. Stat. The use of non-deadly force is not justified if you find: Give only if the defendant is charged with an independent forcible felony. See Giles v. State, 831 So. 2d 1263 (Fla. 4th DCA 2002). 1. (Defendant) was attempting to commit, committing, or escaping after the commission of a (applicable forcible felony). Define applicable forcible felony. 2. (Defendant) initially provoked the use of force against [himself] [herself], unless: Aggravated battery784.0458.4 a. The force asserted toward the defendant was so great that [he] [she] reasonably believed that [he] [she] was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force on (assailant) . b. In good faith, the defendant withdrew from physical contact with ( assailant ) and clearly indicated to (assailant) that [he] [she] wanted to withdraw and stop the use of deadly force, but (assailant) continued or resumed the use of force. Assault784.0118.1 Comment Force in resisting a law enforcement officer. § 776.051(1), Fla. Stat. A person is not justified in using force to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she is known, or reasonably appears, to be a law enforcement officer. Give the following instruction if applicable. However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend [himself] [herself] [another], but only to the extent [he] [she] reasonably believes such force is necessary. See § 776.012, Fla. Stat.; Ivester v. State, 398 So. 2d 926 (Fla. 1st DCA 1981); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985). In some instances, the instructions applicable to §§ 776.012, 776.031, or 776.041, Fla. Stat., may need to be given in connection with this instruction. Read in all cases. In deciding whether the defendant was justified in the use of non-deadly force, you must judge [him] [her] by the circumstances by which [he] [she] was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of non-deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real. Reputation of victim. Give if applicable. If you find that (victim) had a reputation of being a violent and dangerous person and that [his] [her] reputation was known to the defendant, you may consider this fact in determining whether the actions of the defendant were those of a reasonable person in dealing with an individual of that reputation. Physical abilities. Read in all cases. In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of the defendant and (victim) . Read in all cases. If, in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of non-deadly force, you should find the defendant not guilty. However, if from the evidence you are convinced that the defendant was not justified in the use of non-deadly force, then you should find [him] [her] guilty if all the elements of the charge have been proved. Comment Did the witness have some interest in how the case should be decided? Duress is not a defense to an intentional homicide. See Wright v. State, 402 So.2d 193 (Fla. 3d DCA 1981).This instruction was adopted in July 1998 and amended in 2011. 3.6(m) AFFIRMATIVE DEFENSE: TEMPORARY POSSESSION OF CONTROLLED SUBSTANCE FOR LEGAL DISPOSITION An issue in this case is whether (defendant) temporarily possessed the controlled substance in order to make a legal disposition of it. It is not a crime for a person to temporarily possess a controlled substance for the purpose of legal disposition. In order to find the defendant temporarily possessed a controlled substance to make a legal disposition of it, you must find the following: (Defendant) possessed the controlled substance. The possession of the controlled substance was temporary. No lesser included offenses have been identified for this offense. Comment This instruction was adopted in 2009 and amended in 2011. If requested, give definition of “law enforcement officer” from § 943.10(14), Fla. Stat., None Attempted voluntary manslaughter782,07 and 777.046.6 Had any pressure or threat been used against the witness that affected the truth of the witness’s testimony? None Aggravated assault784.0218.2 Does the witness’s testimony agree with the other testimony and other evidence in the case? The instructions covered under paragraphs numbered 6 through 10, inclusive, are not common to all cases. These numbered paragraphs should be included only as required by the evidence. Give as applicable. Has the witness been offered or received any money, preferred treatment, or other benefit in order to get the witness to testify? This instruction was adopted in 1981 and was amended in 1995 and September 2005 and 2011. 6.4 ATTEMPTED SECOND DEGREE MURDER §§ 782.04(2) and 777.04, Fla. Stat. To prove the crime of Attempted Second Degree Murder, the State must prove the following two elements beyond a reasonable doubt: (Defendant) intentionally committed an act which would have resulted in the death of (victim) except that someone prevented (defendant) from killing (victim) or [he] [she] failed to do so. a. The force asserted toward the defendant was so great that [he] [she] reasonably believed that [he] [she] was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using non-deadly force on (assailant) . a. [ owned] [had in [his] [her] care, custody, possession, or control] [a firearm] [an electric weapon or device] [ammunition]. [carried a concealed weapon.] 3. (Defendant) was under 24 years of age at the time [he] [she] [[owned] [possessed] [the firearm][the electric weapon or device] [the ammunition]] [carried the concealed weapon]. Note to Judge: “Found” refers to a finding of fact by a court of competent jurisdiction and does not require an adjudication of guilt. State v. Menuto, 912 So. 2d 603 (Fla. 2d DCA 2005). Definitions. §985.03(8), Fla. Stat. “Delinquent act” is a violation of law found by a court to have been committed by any married or unmarried child under 18 years of age. Give as appropriate. §790.001(6), Fla. Stat. A “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 such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. [The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime.] [A destructive device is (insert definition in §790.001(4), Fla. Stat. ]. §790.001(19), Fla. Stat. “Ammunition” means an object consisting of all of the following: a. A fixed metallic or nonmetal hull or casing containing a primer. b. One or more projectiles, one or more bullets, or shot. c. Gunpowder. §790.001(14), Fla. Stat. An “electric weapon or device” means any device which, through the application or use of electrical current, is designed, redesigned, used, or intended to be used for offensive or defensive purposes, the destruction of life, or the infliction of injury. §790.001(3), Fla. Stat. A “concealed weapon” is legally defined as any dirk, metallic knuckles, slingshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about a person in such a manner as to conceal the weapon from the ordinary sight of another person. Ensor v. State, 403 So. 2d 349 (Fla. 1981). The term “on or about a person” means physically on the person or readily accessible to [him][her]. The term “ordinary sight of another person” means the casual and ordinary observation of another in the normal associations of life. Absolute invisibility is not a necessary element to a finding of concealment. Give if appropriate. Robinson v. State, 547 So. 2d 321 (Fla. 5 th DCA 1989); Cook v. Crosby, 914 So. 2d 490 (Fla. 1 st DCA 2005) . A “deadly weapon” is any instrument which will likely cause death or great bodily harm when used in the ordinary and usual manner contemplated by its design and construction. An object can be a deadly weapon if its sole modern use is to cause great bodily harm. An object can also be a deadly weapon because of the way it is used or intended to be used or threatened to be used. Give if 2a alleged. “Care” and “custody” mean immediate charge and control exercised by a person over the named object. The terms care, custody, and control may be used interchangeably. Possession. 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. Actual possession means CARRYING A CONCEALED WEAPON OR POSSESSING FIREARM/AMMUNITION/ELECTRIC WEAPON OR DEVICE BY A PERSON UNDER THE AGE OF 24 WHO HAS BEEN FOUND DELINQUENT OF AN OFFENSE WHICH WOULD BE A FELONY IF COMMITTED BY AN ADULT– 790.23(1)(b) or (d) Fla. Stat. Whatever verdict you render must be unanimous, that is, each juror must agree to the same verdict. Give 7 if applicable. It is entirely proper for a lawyer to talk to a witness about what testimony the witness would give if called to the courtroom. The witness should not be discredited by talking to a lawyer about [his] [her] testimony. 8. Your verdict should not be influenced by feelings of prejudice, bias, or sympathy. Your verdict must be based on the evidence, and on the law contained in these instructions. Comment Give if applicable. Mere proximity to an object is not sufficient to establish control over the object when the object is not in a place over which the person has control. Constructive possession means the object is in a place over which (defendant) has control, or in which (defendant) has concealed it. In order to establish constructive possession of an object if the object is in a place over which the defendant does not have control, the State must prove the defendant’s (1) control over the object and (2) knowledge that the object was within the defendant’s presence. Possession may be joint, that is, two or more persons may jointly possess an object, exercising control over it. In that case, each of those persons is considered to be in possession of that object. If a person has exclusive possession of an object, knowledge of its presence may be inferred or assumed. A special instruction may be given if the premises are jointly occupied and the object is located in a common area, in plain view, and in the presence of the owner or occupant. See Duncan v. State, 986 So.2d 653 (Fla. 4 th DCA 2008). If a person does not have exclusive possession of an object, knowledge of its presence may not be inferred or assumed. Lesser Included Offenses The act was imminently dangerous to another and demonstrating a depraved mind without regard for human life. Definitions . An “act” includes a series of related actions arising from and performed pursuant to a single design or purpose. An act is “imminently dangerous to another and demonstrating a depraved mind” if it is an act or series of acts that: 1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and Battery784.038.3 The court also may wish to give as part of this instruction the instructions covered under 3.9(a) and (b), concerning expert witnesses and accomplices. If so, the Committee recommends that they be given as additional numbered paragraphs, which would precede the last two unnumbered paragraphs of this instruction.This instruction was adopted in 1981 and amended in 2011. 3.10 RULES FOR DELIBERATION These are some general rules that apply to your discussion. You must follow these rules in order to return a lawful verdict: You must follow the law as it is set out in these instructions. If you fail to follow the law, your verdict will be a miscarriage of justice. There is no reason for failing to follow the law in this case. All of us are depending upon you to make a wise and legal decision in this matter. 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. CATEGORY ONECATEGORY TWOFLA. STAT.INS. NO. 3. is of such a nature that the act itself indicates an indifference to human life. In order to convict of Attempted Second Degree Murder, it is not necessary for the State to prove the defendant had an intent to cause death. It is not an attempt to commit second degree murder if the defendant abandoned the attempt to commit the offense or otherwise prevented its commission under circumstances indicating a complete and voluntary renunciation of [his] [her] criminal purpose. Lesser Included Offenses Has Was it proved that the witness been convicted of a crime [felony] [misdemeanor involving [dishonesty] [false statement]] ? CATEGORY ONECATEGORY TWOFLA. STAT.INS. NO. Force in resisting a law enforcement officer. § 776.051(1), Fla. Stat. A person is not justified in using force to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she is known, or reasonably appears, to be a law enforcement officer. Give if applicable. However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend [himself] [herself] (or another) , but only to the extent [he] [she] reasonably believes such force is necessary. See § 776.012, Fla. Stat.; Ivester v. State, 398 So. 2d 926 (Fla. 1st DCA 1981); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985). In some instances, the instructions applicable to §§ 776.012, 776.031, or 776.041, Fla. Stat., may need to be given in connection with this instruction. Read in all cases. In deciding whether defendant was justified in the use of deadly force, you must judge [him] [her] by the circumstances by which [he] [she] was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real. No duty to retreat. § 776.013(3), Fla. Stat. See Novak v. State 974 So. 2d 520 (Fla. 4 th DCA 2008) regarding unlawful activity. There is no duty to retreat where the defendant was not engaged in any unlawful activity other than the crime(s) for which the defendant asserts the justification. If the defendant [was not engaged in an unlawful activity and] was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat and had the right to stand [his] [her] ground and meet force with force, including deadly force, if [he] [she] reasonably believed that it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another] or to prevent the commission of a forcible felony. Define applicable forcible felony from list in § 776.08, Fla. Stat. that defendant alleges victim was about to commit. Presumption of Fear (dwelling, residence, or occupied vehicle). Give if applicable. § 776.013(2)(a)-(d), Fla. Stat. If the defendant was in a(n)[dwelling] [residence] [occupied vehicle] where [he] [she] had a right to be, [he] [she] is presumed to have had a reasonable fear of imminent death or great bodily harm to [himself] [herself] [another] if (victim) had [unlawfully and forcibly entered] [removed or attempted to remove another person against that person’s will from] that [dwelling] [residence] [occupied vehicle] and the defendant had reason to believe that had occurred. The defendant had no duty to retreat under such circumstances. Exceptions to Presumption of Fear. § 776.013(2)(a)-(d), Fla. Stat. Give as applicable. The presumption of reasonable fear of imminent death or great bodily harm does not apply if: the person against whom the defensive force is used has the right to be in [or is a lawful resident of the [dwelling] [residence]] [the vehicle], such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or the person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or c. the person who uses defensive force is engaged in an unlawful activity or is using the [dwelling] [residence] [occupied vehicle] to further an unlawful activity; or d. the person against whom the defensive force is used is a law enforcement officer, who enters or attempts to enter a [dwelling] [residence] [vehicle] in the performance of [his] [her] official duties and the officer identified [himself] [herself] in accordance with any applicable law or the person using the force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer. Did the witness at some other time make a statement that is inconsistent with the testimony [he] [she] gave in court? This instruction was adopted in 1994 and amended in 1997 and 2011. 8.21 [ASSAULT] [AGGRAVATED ASSAULT] [BATTERY] [AGGRAVATED BATTERY] BY A DETAINEE UPON [ANOTHER DETAINEE] [A VISITOR] § 784.082, Fla. Stat. To prove the crime of ( insert crime) , the State must prove the following three elements beyond a reasonable doubt: (Defendant) was detained in a [prison] [jail] [detention facility]. At the time, (defendant) committed [an assault] [an aggravated assault] [a battery] [an aggravated battery] against (victim). (Victim) was a [detainee] [visitor] in that facility. Give as applicable. An assault is legally defined as ( insert applicable portions of instruction 8.1 ) . An aggravated assault is legally defined as ( insert applicable portions of instruction 8.2 ) . A battery is legally defined as ( insert applicable portions of instruction 8.3 ) . An aggravated battery is legally defined as ( insert applicable portions of instruction 8.4 and/or 8.4(a) . Comment See relevant instructions for lesser-included offenses. The First District held that § 784.082, Fla. Stat. does not apply to juveniles held in juvenile facilities. T.C. v. State , 852 So. 2d 276 (Fla. 1 st DCA 2003). The Fourth and Fifth Districts disagree. State v. Hopkins, 47 So. 3d 974 (Fla. 4 th DCA 2010); J.A.D. v. State , 855 So. 2d 1199 (Fla. 5 th DCA 2003). This instruction was adopted in 2011. 10.15(a) POSSESSION OF [A FIREARM] [AN ELECTRIC WEAPON OR DEVICE] [AMMUNITION] OR [CARRYING A CONCEALED WEAPON] BY A PERSON UNDER THE AGE OF 24 WHO HAS BEEN FOUND DELINQUENT OF AN OFFENSEWHICH WOULD BE A FELONY IF COMMITTED BY AN ADULT § 790.23(1)(b) or (d), Fla. Stat. To prove the crime of (crime charged), the State must prove the following three elements beyond a reasonable doubt: 1. (Defendant) had been found by [a court of this state] [a court of another [state] [territory] [country]] to have committed a delinquent act that would be a felony if committed by an adult [and which was punishable by imprisonment for a term exceeding 1 year]. Give 2a or 2b as applicable. 2. After being found to have committed that delinquent act, (defendant) 2. is done from ill will, hatred, spite, or an evil intent, and The temporary possession was solely for the purpose of a legal disposition. Definitions. “Legal disposition” means to throw the controlled substance away, give the controlled substance to a law enforcement officer, or in the case of a lawfully obtained prescribed medication, to either deliver the controlled substance to the individual for whom the prescription was written or temporarily hold it on that individual’s behalf, for a legitimate purpose, while acting in the capacity of [his][her] agent. An “agent” is one who is authorized to act for or in place of another. There is no statute for the defense of “legal disposition” and the case law is silent as to 1) which party bears the burden of persuasion of the affirmative defense and 2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on an affirmative defense by a preponderance of the evidence. In some cases of silent statutes, the Florida Supreme Court has held that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See the opinions in Dixon v. United States, 548 U.S. 1 (2006) for further guidance. If burden of persuasion is on the defendant: If you find that defendant proved (insert appropriate burden of persuasion) that [he] [she] temporarily possessed the controlled substance solely for legal disposition, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that [he] [she] temporarily possessed the controlled substance solely for legal disposition, you should find [him] [her] guilty if all the elements of the charge have been proven beyond a reasonable doubt. If burden of persuasion is on the State: If you find that the State proved (insert appropriate burden of persuasion) that the defendant did not temporarily possess the controlled substance solely for legal disposition, you should find [him] [her] guilty, if all of the elements of the charge have been proven beyond a reasonable doubt. However, if you are not convinced (insert appropriate burden of persuasion) that the defendant did not temporarily possess the controlled substance solely for legal disposition, you should find [him] [her] not guilty. Comment See Ramsubhag v. State, 937 So.2d 1192 (Fla. 4 th DCA 2006); McCoy v. State, 35 Fla. L. Weekly D2876 (Fla. 1 st DCA 2010). This instruction was adopted in 2011. 3.9 WEIGHING THE EVIDENCE It is up to you to decide what evidence is reliable. You should use your common sense in deciding which is the best evidence, and which evidence should not be relied upon in considering your verdict. You may find some of the evidence not reliable, or less reliable than other evidence. You should consider how the witnesses acted, as well as what they said. Some things you should consider are: Did the witness seem to have an opportunity to see and know the things about which the witness testified? Remember, the lawyers are not on trial. Your feelings about them should not influence your decision in this case. When the jury is to be involved in a penalty phase, omit the second sentence of paragraph 5. Your duty is to determine if the defendant has been proven guilty or not, in accord with the law. It is the judge’s job to determine a proper sentence if the defendant is found guilty. Was the witness honest and straightforward in answering the attorneys’ questions? This case must be decided only upon the evidence that you have heard from the testimony of the witnesses [and have seen in the form of the exhibits in evidence] and these instructions. 3.6(k) DURESS OR NECESSITY An issue in this case is whether (defendant) acted out of [duress] [necessity] in committing the crime of (crime charged) (lesser included offenses) . It is a defense to the (crime charged) (lesser included offenses) if the defendant acted out of [duress] [necessity]. In order to find the defendant committed the (crime charged) (lesser included offense) out of [duress] [necessity], you must find the following six elements: 1. The defendant reasonably believed [a danger] [an emergency] existed which was not intentionally caused by [himself] [herself]. 2. a. The [danger] [emergency] threatened significant harm to [himself] [herself] [a third person]. Give 2b if escape charged. b. The [danger] [emergency] threatened death or serious bodily injury. 3. The threatened harm must have been real, imminent, and impending. Give 4a if escape is not charged. 4. a. The defendant had no reasonable means to avoid the [danger] [emergency] except by committing the (crime charged) (lesser included offenses) . If escape is charged, the court must first determine whether the defendant has satisfied the conditions precedent enumerated in Muro v. State, 445 So.2d 374 (Fla. 3d DCA 1984), and Alcantaro v. State, 407 So.2d 922 (Fla. 1 st DCA 1981), and if so, give 4b. b. The defendant left [the place of [his] [her] confinement] [the vehicle in which [he] [she] was being transported] [to] [from] [his] [her] work on a public road] because [he] [she] reasonably believed that escape was necessary to avoid the danger of death or serious injury, rather than with the intent to elude lawful authority. 5. The (crime charged) (lesser included offenses) must have been committed out of [duress] [necessity] to avoid the [danger] [emergency]. 6. The harm that the defendant avoided must outweigh the harm caused by committing the (crime charged) (lesser included offenses) . Definitions. “Imminent and impending” means the [danger] [emergency] is about to take place and cannot be avoided by using other means. A threat of future harm is not sufficient to prove this defense. Nor can the defendant use the defense of [duress] [necessity] if [he] [she] committed the crime after the danger from the threatened harm had passed. The reasonableness of the defendant’s belief that [a danger] [an emergency] existed should be examined in the light of all the evidence. In deciding whether it was necessary for the defendant to commit the (crime charged) (lesser included offenses) , you must judge the defendant by the circumstances by which [he] [she] was surrounded at the time the crime was committed. The [danger] [emergency] facing the defendant need not have been actual; however, to justify the commission of the (crime charged) (lesser included offenses) , the appearance of the [danger] [emergency] must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the [danger] [emergency] could be avoided only by committing the (crime charged) (lesser included offenses) . Based upon appearances, the defendant must have actually believed that the [danger] [emergency] was real. If you have a reasonable doubt find from the evidence that as to whether the defendant committed the (crime charged) (lesser included offenses) out of [duress] [necessity], you should find the defendant not guilty. However, if you are convinced beyond a reasonable doubt find that the defendant did not commit the (crime charged) (lesser included offenses) out of [duress] [necessity] , you should find the defendant guilty if all the elements of the charge have been proved. Comment This instruction was adopted in 1981 and was amended in 1985 [477 So. 2d 985], 1992 [603 So. 2d 1175], 2006 [930 So. 2d 612], and 2010 and 2011. [a race] [a drag race or acceleration contest] [a speed competition or contest] [a test of physical endurance] [an exhibition of speed] [an attempt to make a speed record] on a [highway] [road] [parking lot]. b. In good faith, the defendant withdrew from physical contact with ( assailant ) and indicated clearly to (assailant) that [he] [she] wanted to withdraw and stop the use of non-deadly force, but (assailant) continued or resumed the use of force. § 776.013(4), Fla. Stat. A person who unlawfully and by force enters or attempts to enter another’s [dwelling] [residence] [occupied vehicle] is presumed to be doing so with the intent to commit an unlawful act involving force or violence. Definitions. Give if applicable. § 776.013(5), Fla. Stat. As used with regard to self defense: “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent or mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night. “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest. “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property. Prior threats. Give if applicable. If you find that the defendant who because of threats or prior difficulties with (victim) had reasonable grounds to believe that [he] [she] was in danger of death or great bodily harm at the hands of (victim), then the defendant had the right to arm [himself] [herself]. However, the defendant cannot justify the use of deadly force, if after arming [himself] [herself] [he] [she] renewed [his] [her] difficulty with (victim) when [he] [she] could have avoided the difficulty, although as previously explained if the defendant was not engaged in an unlawful activity and was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat. Reputation of victim. Give if applicable. If you find that (victim) had a reputation of being a violent and dangerous person and that [his] [her] reputation was known to the defendant, you may consider this fact in determining whether the actions of the defendant were those of a reasonable person in dealing with an individual of that reputation. Physical abilities. Read in all cases. In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of the defendant and ( victim ). Read in all cases. If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty. However, if from the evidence you are convinced that the defendant was not justified in the use of deadly force, you should find [him] [her] guilty if all the elements of the charge have been proved. Comment This instruction was adopted in 1981 and was amended in 1985 [477 So. 2d 985], 1999 [732 So. 2d 1044], 2000 [789 So. 2d 984], 2006 [930 So. 2d 612], and 2010 and 2011. Carrying concealed firearm790.01(2)10.1 ATTEMPTED SECOND DEGREE MURDER — 782.04(2) and 777.04 Did the witness seem to have an accurate memory? Proposed jury instructions The Supreme Court Committee on Standard Jury Instructions in Criminal Cases submits the following amended and new instructions to the Florida Standard Jury Instructions in Criminal Cases for comment. The committee proposes the following instructions: 3.6(f) JUSTIFIABLE USE OF DEADLY FORCE 3.6(g) JUSTIFIABLE USE OF NON-DEADLY FORCE 3.6(k) DURESS OR NECESSITY 3.6(m) AFFIRMATIVE DEFENSE: TEMPORARY POSSESSION OF CONTROLLED SUBSTANCE FOR LEGAL DISPOSITION 3.9 WEIGHING THE EVIDENCE 3.10 RULES FOR DELIBERATION 6.4 ATTEMPTED SECOND DEGREE MURDER 8.21 [ASSAULT] [AGGRAVATED ASSAULT] [BATTERY] [AGGRAVATED BATTERY] BY A DETAINEE UPON [ANOTHER DETAINEE] [A VISITOR] 10.15(a) POSSESSION OF [A FIREARM] [AN ELECTRIC WEAPON OR DEVICE] [AMMUNITION] OR [CARRYING A CONCEALED WEAPON] BY A PERSON UNDER THE AGE OF 24 WHO HAS BEEN FOUND DELINQUENT OF AN OFFENSEWHICH WOULD BE A FELONY IF COMMITTED BY AN ADULT 28.5(a) RACING ON A HIGHWAY T he committee invites all interested persons to comment on the proposals, reproduced in full below. Comments must be received by the committee in both hard copy and electronic format on or before May 31. The committee will review all comments received in response to the above proposal at its next meeting and will consider amendments based upon the comments received. Upon final approval of the instruction, the committee will make a recommendation to the Florida Supreme Court. File your comments electronically to [email protected], in the format of a Word document. In addition, mail a hard copy of your comments to: Standard Jury Instructions Committee in Criminal Cases, c/o Mr. Bart Schneider, General Counsel’s Office, Office of the State Courts Administrator, 500 S. Duval Street, Tallahassee 32399-1900. 3.6(f) JUSTIFIABLE USE OF DEADLY FORCE Because there are many defenses applicable to self-defense, give only those parts of the instructions that are required by the evidence. Read in all cases. An issue in this case is whether the defendant acted in self-defense. Give a or b as applicable. It is a defense to the offense with which (defendant) is charged if the [death of] [injury to] ( victim ) resulted from the justifiable use of deadly force. It is a defense to the crime of (name of crime charged that did not result in injury or death) if the actions of the defendant constituted the justifiable use of deadly force. It is a defense to the offense with which (defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of deadly force. Definition. “Deadly force” means force likely to cause death or great bodily harm. Give if applicable. § 782.02, Fla. Stat. The use of deadly force is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to [himself] [herself] while resisting: 1. another’s attempt to murder [him] [her], or 2. any attempt to commit (applicable felony) upon [him] [her], or 3. any attempt to commit (applicable felony) upon or in any dwelling, residence, or vehicle occupied by [him] [her]. Insert and define applicable felony that defendant alleges victim attempted to commit. Give if applicable. §§ 776.012, 776.031, Fla. Stat. A person is justified in using deadly force if [he] [she] reasonably believes that such force is necessary to prevent 1. imminent death or great bodily harm to [himself] [herself] or another, or 2. the imminent commission of (applicable forcible felony) against [himself] [herself] or another. Insert and define applicable forcible felony that defendant alleges victim was about to commit. Forcible felonies are listed in § 776.08, Fla. Stat. Aggressor. § 776.041, Fla. Stat. However, the use of deadly force is not justifiable if you find: Give only if the defendant is charged with an independent forcible felony. See Giles v. State, 831 So. 2d 1263 (Fla. 4th DCA 2002). 1. (Defendant) was attempting to commit, committing, or escaping after the commission of (applicable forcible felony) ; or Define applicable forcible felony. Define after paragraph 2 if both paragraphs 1 and 2 are given. Forcible felonies are listed in § 776.08, Fla. Stat. 2. (Defendant) initially provoked the use of force against [himself] [herself], unless: Comment This instruction was adopted in 2011. The 3-year minimum mandatory sentence for actual possession of a firearm does not apply because this crime is not listed in §775.087(2) Fla. Stat. Potter v. State , 997 So. 2d 1215 (Fla. 1 st DCA 2008). 28.5(a) RACING ON A HIGHWAY § 316.191, Fla. Stat. To prove the crime of Racing on a Highway, the State must prove the following element beyond a reasonable doubt: Give a, b, c, or d as applicable. (Defendant) a. drove a motor vehicle in b. [participated] [coordinated] [facilitated] [collected monies] at the location of c. knowingly rode as a passenger in d. purposefully caused moving traffic to slow or stop for last_img read more

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