December 1, 2003 Notices

first_imgDecember 1, 2003 Notices b. [was represented to (defendant) as being Board to fill Foundation vacancy The Dade County Bar Association will soon make three appointments to the Legal Services of Greater Miami Board of Directors.Applicants must have an interest in, and knowledge of, the delivery of quality legal services to the poor. The terms of office will run from January 1, 2004 to December 31, 2006.Those interested in being appointed must submit a resume to Johnnie M. Ridgely, Dade County Bar Association executive director, no later than December 8. For more information contact Ridgely at (305) 371-2220. [within [his] [her] official discretion] . ] . [in violation of [his] [her] public duty] . ] . [in performance of [his] [her] public duty].] Definition §838.014(6), Fla.Stat “Corruptly” means acting knowingly and dishonestly for a wrongful purpose done with a wrongful intent and for the purpose of compensating or paying for any benefit resulting from some act or omission of a public servant that is inconsistent with the proper performance of [his] [her] public duties .] .. . 19.4 BRIBERY BY A PUBLIC SERVANT §838.016(1), Fla.Stat. To prove the crime of Bribery by a Public Servant, the State must prove the following four elements beyond a reasonable doubt: 1. (Defendant) was a (office of defendant) . 2. (Defendant) [requested] [solicited] [accepted] [agreed to accept] from (person making bribe) the thing described in the charge in this case as (read from charge) . 3. The (read from charge) was something of value, benefit or advantage to [ (defendant) ] [a person in whose welfare (defendant) was interested] not authorized by law . 4. The [request] [solicitation] [acceptance] [agreement to accept] was corruptly made for the past, present, or future performance, nonperformance or violation of any act or omission of (defendant) that Give 4a or 4b as applicable 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. Rule 10-9.1(f)(1) Notice, Appearance and Service. At least 30 days in advance of the committee meeting at which a hearing is to be held with respect to a potential advisory opinion, the committee shall give public notice of the date, time, and place of the hearing, state the question presented, and invite written comments on the question. On the announced date the committee shall hold a public hearing at which any person affected shall be entitled to present oral testimony and be represented by counsel. Oral testimony by other persons may be allowed by the committee at its discretion. At the time of, or prior to, the hearing any other person shall be entitled to file written testimony on the issue before the committee.You are notified the Standing Committee on Unlicensed Practice of Law will hold a public hearing on January 15, 2004, at the Hyatt Regency Hotel in Miami, 400 Southeast Second Avenue, Miami 33131-2197, at 10:30 a.m..The question presented for consideration is : Whether any of the following actions constitute the unlicensed practice of law when performed by a nonlawyer on behalf of a party to a mortgage foreclosure action pending before a Florida court:1) Negotiating with the lender or lender’s attorney to modify, reinstate, or restructure the mortgage loan which forms the basis of the foreclosure action;2) Drafting documents which memorialize the negotiations as the representative of a party to the foreclosure action;3) Reviewing and explaining to the party to the mortgage foreclosure action documents drafted by the lender or lender’s attorney which memorialize the negotiations;4) Inducing the party to the mortgage foreclosure action to rely on the nonlawyer to handle all aspects of the foreclosure action for the party; and/or5) Preparing pleadings and other documents to be filed in the court in connection with the mortgage foreclosure action;Whether a nonlawyer who negotiates the modification, reinstatement, or restructure of a mortgage loan outside of the foreclosure context engages in the unlicensed practice of law.Written testimony may be filed at the time of, or prior to, the hearing by sending a copy of same to Jeffrey T. Picker, Assistant UPL Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee 32399-2300.U.S. 11th Circuit to amends its rules The United States District Court for the Northern District of Florida accepts electronically filed pleadings and makes the content of these pleadings available on the court’s Web site via the Case Management/Electronic Case Files system and/or PACER.Any subscriber to CM/ECF and/or PACER will be able to read, download, store, and print the full content of electronically filed documents. The clerk’s office will not make electronically available documents that have been sealed or otherwise restricted by court order.Lawyers should not include sensitive information in any document filed with the court unless such inclusion is necessary and relevant to the case. Any personal information not otherwise protected will be made available over the Internet via CM/ECF and/or WebPACER. If sensitive information must be included, the following personal data identifiers must be partially redacted from the document, whether it is filed traditionally or electronically: Social Security numbers, financial account numbers, dates of birth, and the names of minor children.To comply with the E-Government Act of 2002, Pub. L. No. 107-347, a party wishing to file a document containing the personal data identifiers specified above may move for leave to file an unredacted document under seal. If the court grants the motion, the court will retain the paper document as part of the record. In granting the motion, the assigned judge may require the party to file a redacted copy for the public file.In addition, exercise caution when filing documents that contain the following:• Personal identifying number, such as driver’s license number;• Medical records, treatment, and diagnosis;• Employment history;• Individual financial information; and• Proprietary or trade secret information.Counsel are strongly urged to share this notice with all clients so that an informed decision about the inclusion of certain materials may be made. If a redacted document is filed, it is the sole responsibility of counsel and the parties to be sure that all pleadings comply with this notice requiring redaction of personal data identifiers. Likewise, counsel and the parties will be solely responsible for any unredacted documents filed. The Clerk’s office will not review documents for compliance with this notice, seal on its own motion documents containing personal identifiers, or redact documents, whether filed electronically or on paper.Moses petitions for Bar reinstatement 1. (Defendant) Pursuant to 28 U.S.C. §2071(b), notice and opportunity for comment is hereby given of proposed amendments to the Rules and Internal Operating Procedures of the U.S. Court of Appeals for the 11th Circuit.A copy of the proposed amendments may be obtained on and after December 5 from the 11th Circuit’s Internet Web site at www.ca11.uscourts.gov. A copy may also be obtained without charge from the Office of the Clerk, U.S. Court of Appeals for the 11th Circuit, 56 Forsyth St. N.W., Atlanta, GA 30303, phone (404) 335-6100. Comments on the proposed amendments may be submitted in writing to the clerk at the above street address by January 5, 2004.Northern District sets e-filing criteria a. [ (person making bribe) believed to be The Florida Supreme Court’s Committee on Standard Jury Instructions in Criminal Cases currently has several vacancies. Any lawyer licensed to practice law in Florida and any member of the Florida judiciary may apply for appointment.An application form can be obtained from Gerry Rose by e-mail at [email protected]; by mail at The Florida Bar, 651 East Jefferson St., Tallahassee 32399-2300; by telephone at (850) 561-5706; or by fax (850) 561-5817.Applications are to be sent to Judge Dedee Costello, Bay County Courthouse, P.O. Box 1089, Panama City 32402-1089. The deadline for submitting applications is January 15.Proposed criminal jury instructions a. [ (defendant) believed to be [within the official discretion of (person bribed) ] . ] . Define felony Defense of home against co-occupant If the defendant was attacked in [his] [her] own home or on [his] [her] own premises by [a co-occupant] [any person who was lawfully on the premises], the defendant had a duty to retreat within the residence to the extent reasonably possible without increasing [his] [her] own danger of death or great bodily harm. However, the defendant was not required to flee [his] [her] home and had the lawful right to stand [his] [her] ground and meet force with force, even to the extent of using force likely to cause death or great bodily harm if it was necessary to prevent death or great bodily harm to [himself] [herself]. 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 likely to cause death or great bodily harm , if after arming [himself] [herself] [he] [she] renewed [his] [her] difficulty with (victim) when [he] [she] could have avoided the difficulty. 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 likely to cause death or great bodily harm , 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 likely to cause death or great bodily harm , you should find [him] [her] guilty if all the elements of the charge have been proved. 3.6(g) JUSTIFIABLE USE OF NONDEADLY FORCE Because there are many defenses applicable to self-defense, give only those parts of the instructions that are required by the evidence. 7/92 hyphen added to self-defense Read in all cases An issue in this case is whether the defendant acted in self-defense. 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 nondeadly force not likely to cause death or great bodily harm . Nondeadly force is defined as force not likely to cause death or great bodily harm. In defense of person § 776.012, Fla.Stat. (Defendant) would be justified in using nondeadly force not likely to cause death or great bodily harm against (victim) if the following two facts are proved: 7/92 brackets around himself and added [herself]. Added brackets to another, defendant, and other person Give if applicable 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] [other person]. 2. The use of unlawful force by (victim) must have appeared to (defendant) ready to take place. In defense of property § 776.031, Fla.Stat. (Defendant) would be justified in using nondeadly force not likely to cause death or great bodily harm against (victim) if the following three facts are proved: 7/92 in paragraph 2. added brackets to his and added [her]. Same change to he and added [she] Give if applicable 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. 7/92 added [] to his and added [her] 3. (Defendant) must have reasonably believed that [his] [her] use of force was necessary to prevent or terminate (victim’s) wrongful behavior. Aggressor § 776.041, Fla.Stat. The use of nondeadly force not likely to cause death or great bodily harm is not justifiable if you find: 7/92 added [] to himself, he and added [herself], [she] to paragraphs numbered 2, (a), (b) Give if applicable 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: 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 nondeadly force not likely to cause death or great bodily harm to (assailant) . 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 nondeadly force not likely to cause death or great bodily harm , but (assailant) continued or resumed the use of force. 7/92 added highlighted material who is known to be or reasonably Force in resisting arrest § 776.051(1), Fla.Stat. A person is not justified in using force to resist an arrest by a law enforcement officer who is known to be or reasonably appears to be a law enforcement officer. 7/92 added [] to himself, he and added [herself] [she] and added [] to or another 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. 7/92 added the before defendant – added [] to him, he and added [her], [she] Read in all cases In deciding whether the defendant was justified in the use of nondeadly force not likely to cause death or great bodily harm , 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 nondeadly force not likely to cause death or great bodily harm , 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. 7/92 necessity to avoid use of deadly force paragraph deleted. [] added to his and added [her] 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 nondeadly force not likely to cause death or great bodily harm , you should find the defendant not guilty. 7/92 added [] to him and added [her] However, if from the evidence you are convinced that the defendant was not justified in the use of nondeadly force not likely to cause death or great bodily harm , then you should find [him] [her] guilty if all the elements of the charge have been proved. 30 GRAND JURY HANDBOOK .. . WHAT IS A GRAND JURY .. . TERM OF THE GRAND JURY .. . WHO ARE GRAND JURORS Grand jurors are United States citizens and Florida legal residents of this state and their respective counties who are at least 18 years of age and who possess a driver’s license or identification card issued by the Department of Highway Safety and Motor Vehicles, or who execute an affidavit indicating a desire to serve as a juror. .. . DISQUALIFICATION TO SERVE AS A GRAND OR PETIT JUROR Any person who has been convicted of a felony or bribery , forgery, perjury, or larceny is disqualified to sit as a juror, unless his or her civil rights have been restored. A person under prosecution for any crime is disqualified. Most government officials are disqualified to serve on a jury. An elected public official is not eligible to be a grand juror. FREQUENTLY USED WORDS AND PHRASES .. . GRAND JURY AND PETIT JURY DISTINGUISHED There are two kind of juries: grand juries and petit juries. The grand jury consists of up to 23 not fewer than 15 nor more than 21 (or 18 for statewide grand jury) members. A petit jury, depending upon the type of trial, consists of either 6 or 12 members. . . . HISTORY OF THE GRAND JURY .. . THE GRAND JURY AS AN ACCUSING AND INVESTIGATIVE BODY .. . It is important to keep in mind that no individual should be unjustly criticized or held up to scorn or public resentment, particularly when it is remembered that the individuals who may be criticized had no opportunity to defend themselves or give reply to the charges. A grand juror must keep in mind that the grand jury is the ultimate instrument of justice and should never be subverted to become the vehicle for harassment harrassment or oppression. OFFICERS OF THE GRAND JURY The judge who presided over the empaneling of the grand jury in the “charge to the grand jury” advised you formally and in great detail as to how the grand jury is organized and functions. In summary, the grand jury consists of 18 or, in some places, of 23 15 but not more than 21 members. Its officers are the foreperson, who will preside over the grand jury deliberations to make sure they are carried on in an orderly fashion including overseeing the examination of the witnesses; a vice-foreperson, who will preside in the absence of the foreperson or if for any reason the foreperson is not able to carry out his or her duty; and the clerk, who will keep a record of the proceedings had before the grand jury and formally make return of these records to the clerk of the circuit court (or clerk of the Supreme Court in the case of the statewide grand jury) for safekeeping. The foreperson and vice-foreperson are appointed by the judge and the clerk is appointed by the foreperson (or in the case of the statewide grand jury, may be selected by the group). The state attorney (or the statewide prosecutor) or assistant state attorneys (or assistant statewide prosecutors) will act as the legal advisers to the grand jury. The grand jury also will be provided an official court reporter or recorder to record the testimony before the grand jury. If the grand jury has its own budget, a treasurer of the grand jury may also be appointed to keep account of all receipts and disbursements made to or from the grand jury budget. If any question should arise concerning how the grand jury shall operate or function, you may apply to the judge, who will advise you. PROCEDURES Not less than 18 15 members of a 23 member grand jury , and 15 of an 18-member statewide grand jury must always be present to constitute a quorum. If less than a quorum exists, the proceedings of the grand jury must be halted until a quorum is present. Grand jurors, who, because of an emergency, find that they will be unable to attend a grand jury session should advise the grand jury clerk or foreperson immediately. An affirmative vote of at least 12 members of the grand jury is necessary to the return of a true bill or indictment. Therefore, even though a quorum is present it still requires at least 12 votes of individual members, rather than a mere majority of those present, in order to return a true bill. PROCEEDINGS OF THE GRAND JURY .. . DETERMINATION WHETHER TO RETURN AN INDICTMENT OR A NO TRUE BILL When the grand jury has heard all necessary or available witnesses and is prepared to deliberate on the issue whether to indict or return a no true bill, the foreperson must compel all persons to leave the grand jury room except the members of the grand jury themselves. No other person is permitted in the grand jury room during its deliberations, even including the state attorney (or the statewide prosecutor), court reporter and interpreter. When the question of whether to indict or return a no true bill is presented, all grand jurors have the right to comment on the evidence and to express their views of the matter. Only when all members of the grand jury have expressed themselves and each has been given the opportunity to be heard should a vote be taken. A vote to return an indictment can be found only upon the affirmative vote of at least 12 members of the grand jury. Similar proceedings should be taken when the matter to be discussed is not a criminal charge or indictment but a presentment, as noted above. If all persons, except the grand jurors, are not removed from the grand jury room during its deliberations, any indictment or presentment would be nullified. .. . 31 FLORIDA GRAND JURY INSTRUCTIONS 1 PRELIMINARY STATEMENTS .. . 2 INSTRUCTIONS ON CRIMINAL MATTERS .. . 2.3 The guilt or innocence of a person indicted by the grand jury is determined by a trial jury that will be specially impanelled impaneled to try the case. The trial jury hears all the evidence, on both sides, in an adversary proceeding under the supervision of a trial judge. Upon the trial based upon the indictment the accused is entitled to be present and have the assistance of counsel and a verdict is rendered only after the accused has had an opportunity to see and hear the witnesses, examine the evidence and have the case argued by counsel. The trial jury will be charged by the trial judge on the law applicable to the case. These safeguards are designed to protect and preserve the constitutional rights of an accused. .. . 3 CIVIL INSTRUCTIONS .. . 4 PROCEDURE .. . 4.4 Every grand jury shall consist of not less than ____ 15 nor more than ____ 21 persons. At least ____ 15 of the jury must be present at all times when the jury is functioning. A favorable vote of not less than ____ 12 of those present is necessary to the finding of any “true bill,” presentment or report. (The Statewide Grand Jury shall be composed of 18 members of which 15 members shall constitute a quorum.) .. . 25.6 DRUG ABUSE — SALE, PURCHASE, MANUFACTURE, OR DELIVERY IN SPECIFIED LOCATIONS § 893.13(1)(c), (d) , and (e) , and (f) To prove the crime of (crime charged) , the state must prove the following four elements beyond a reasonable doubt: 1. (Defendant) [sold] [purchased] [manufactured] [delivered] [possessed with intent to sell] [possessed with intent to manufacture] [possessed with intent to deliver] a certain substance Give a, or b or c as applicable 2. a. in, on, or within 1,000 feet of the real property comprising a child care facility or a public or private elementary, middle, or secondary school between the hours of 6:00 a.m. to 12:00 a.m. midnight (§ 893.13(1)(c), Fla.Stat.) b. in, on, or within 200 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 public 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 a religious services] [a convenience business] . (§ § 893.13(1)(d) -(f) , Fla.Stat.) c. in, on, or within 1000 feet of [a physical place for worship at which a church or religious organization regularly conducts a religious services] [a convenience business]. (§ 893.13(1)(e), Fla.Stat.) 3. The substance was (specific substance alleged) . 4. (Defendant) had knowledge of the presence of the substance. .. . [No changes are proposed to the omitted part of this instruction. Please note, however, that several changes to the omitted part are currently being considered by the court in Case Number SC03-629. The report of the committee in that case is provided at GOTOBUTTON BM_1_www.flcourts.org/sct/sctdocs/probin/sc03-629_petition .pdf See also www.flcourts.org/sct/clerk/comments/2003/03-629_CommentsGusBilirakis.pdf.] .. . Definitions. Give as applicable “ 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. 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 family work between the hours of 11 p.m. and 5 a.m. 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. 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. 16.1 AGGRAVATED CHILD ABUSE § 827.03(2), Fla.Stat. To prove the crime of aggravated child abuse, the State must prove the following two elements beyond a reasonable doubt: 1. (Defendant) was attempting to commit, committing, or escaping after the commission of (applicable forcible felony) ; or [in violation of a public duty of (defendant) ] . ] . [in performance of a public duty of (defendant) ] . ] . The Board of Governors is seeking applicants for the following vacancies to be filled at its January 31, 2004, meeting: Florida Bar Foundation Board of Directors: Two lawyers to serve three-year terms, commencing July 1, 2004, on this 30-member board of directors which administers Florida’s IOTA program. Applicants must also be members of The Florida Bar Foundation.Persons interested in applying for these vacancies may download and complete the application online from the Bar’s Web site, www.flabar.org, or may call Bar headquarters at (850) 561-5600, ext. 5757, to obtain an application form. Completed applications must be submitted to the Executive Director, The Florida Bar, 651 East Jefferson St., Tallahassee 32399-2300 no later than close of business, Thursday, January 9, 2004. Resumes will not be accepted in lieu of an application.Public hearing on UPL issues set b. [ (person bribed) represented as being b. [was represented to (person making bribe) as being Pursuant to Rule 3-7.10, Donald Tony Moses of Jacksonville has petitioned the Florida Supreme Court for Bar reinstatement.Any person having knowledge bearing upon Moses’ fitness or qualifications to resume the practice of law should contact James Morton, staff investigator for The Florida Bar, at (800) 342-8060, ext. 5845, or (850) 561-5845.Jury instruction panel seeks new members Define applicable forcible felony. Define after paragraph 2 if both paragraphs 1 and 2 are given. Force in resisting arrest § 776.051(1), Fla.Stat. A person is not justified in using force to resist an arrest by a law enforcement officer who is known to be, or reasonably appears to be a law enforcement officer. should (or another) be [another] as bracketed choice? See p. 25, the first no. 1. See also p. 27 of this copy. 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). What about cite to State v. Holley, 480 So.2d 94 as best authority. 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 likely to cause death or great bodily harm , 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 likely to cause death or great bodily harm , 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. Necessity to avoid use of deadly force. Read in all cases The defendant cannot justify the use of deadly force likely to cause death or great bodily harm unless [he] [she] used every reasonable means within [his] [her] power and consistent with [his] [her] own safety to avoid the danger before resorting to that force. Retreat. Read in all cases The fact that the defendant was wrongfully attacked cannot justify [his] [her] use of deadly force likely to cause death or great bodily harm if by retreating [he] [she] could have avoided the need to use that force. However, if the defendant was placed in a position of imminent danger of death or great bodily harm and it would have increased [his] [her] own danger to retreat, then [his] [her] use of deadly force likely to cause death or great bodily harm was justifiable. Defense of home. Give if applicable If the defendant was attacked in [his] [her] own home or on [his] [her] own premises, [he] [she] had no duty to retreat and had the lawful right to stand [his] [her] ground and meet force with force, even to the extent of using deadly force likely to cause death or great bodily harm if it was necessary to prevent: 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 likely to cause death or great bodily harm if [he] [she] reasonably believes that such force is necessary to prevent [in violation of a public duty of (person bribed) ] . ] . [in performance of a public duty of (person bribed) ] . ] . center_img b. [ (person bribed) represented as being [within [his] [her] official discretion ] . ] . [in violation of [his] [her] public duty ] . ] . [in performance of [his] [her] public duty ] . ] . Definition §838.014(6), Fla.Stat “Corruptly” means acting knowingly and dishonestly for a wrongful purpose done with a wrongful intent and for the purpose of compensating or paying for any benefit resulting from some act or omission of a public servant that is inconsistent with the proper performance of the [his] [her] public duties . .. . 19.2 BRIBERY BY A PUBLIC SERVANT §838.015(1), Fla.Stat. To prove the crime of Bribery by a Public Servant, the State must prove the following four elements beyond a reasonable doubt: 1. (Defendant) was a (office of defendant) . 2. (Defendant) [requested] [solicited] [accepted] [agreed to accept] from (person making bribe) the thing described in the charge in this case as ( read from charge) . 3. The (read from charge) was something of value, benefit or advantage to [ (defendant) ] [a person in whose welfare (defendant) was interested] not authorized by law . 4. The [request] [solicitation] [acceptance] [agreement to accept] was made with intent of corruptly being influenced in the performance of some act or omission that Give 4a or 4b as applicable The Supreme Court Committee on Standard Jury Instructions in Criminal Cases invites comment on the proposed changes shown below. After reviewing comments received in response to this publication, the committee will make its final proposal to the Florida Supreme Court. Please submit all comments to Judge Dedee Costello, Bay County Courthouse, P. O. Box 1089, Panama City 32402-1089. Your comments must be received by January 15, 2004, to ensure that they are considered by the committee. 3.6(a) INSANITY An issue in this case is whether (defendant) was insane when the crime allegedly was committed. A person is considered to be insane when: 1. He had a mental infirmity, disease, or defect. 2. Because of this condition a. [he] [she] did not know what [he] [she] was doing or its consequences or b. although [he] [she] knew what [he] [she] was doing and its consequences, [he] [she] did not know it was wrong. [within the official discretion of (defendant) ] . ] . [in violation of a public duty of (defendant) ] . ] . [in performance of a public duty of (defendant) ] . ] . a. [ (person making bribe) believed to be [within the official discretion of (defendant) ] . ] . Insert and define appli­cable forcible felony that defendant alleges victim was about to commit Aggressor § 776.041, Fla.Stat. However, the use of deadly force likely to cause death or great bodily harm is not justifiable if you find: Give if applicable [within [his] [her] official discretion ] . ] . [in violation [his] [her] public duty ] . ] . [in performance of [his] [her] public duty ] . ] . Definition §838.014(6), Fla.Stat “Corruptly” means acting knowingly and dishonestly for a wrongful purpose done with a wrongful intent and for the purpose of obtaining or receiving compensation for any benefit resulting from some act or omission of a public servant that is inconsistent with the proper performance of the public servant’s public duties . . . . 19.3 BRIBERY OF PUBLIC SERVANT F.S. 838.016(1) To prove the crime of Bribery of a Public Servant, the State must prove the following four elements beyond a reasonable doubt: 1. (Person bribed) was a (office of person bribed) . 2. (Defendant) [gave] [offered] [promised] to (person bribed) the thing described in the charge in this case as (read from charge) . 3. The (read from charge) was something of value, benefit, or advantage to [ (person bribed) ] [a person in whose welfare (person bribed) was interested] not authorized by law . 4. The [gift] [offer] [promise] was corruptly made for the past, present, or future performance, nonperformance, or violation of any act or omission of (person bribed) that Give 4a or 4b as applicable [death or great bodily harm to [himself] [herself] [another].] [the commission of a forcible felony.] [within the official discretion of (person sought to be influenced) ] . ] . [in violation of the public duty of (person sought to be influenced) ] . ] . [in performance of the public duty of (person sought to be influenced) ] . ] . Definition §838.014(6), Fla.Stat “Corruptly” means acting knowingly and dishonestly for a wrongful purpose done with a wrongful intent and for the purpose of compensating or paying for any benefit resulting from some act or omission of a public servant that is inconsistent with the proper performance of [his] [her] public duties . .. . 19.6 BRIBERY BY A PUBLIC SERVANT §838.016(2), Fla.Stat To prove the crime of Bribery by a Public Servant, the State must prove the following four elements beyond a reasonable doubt: 1. (Person bribed) was a (office of person bribed) . 2. (Defendant) [requested] [solicited] [accepted] [agreed to accept] from (person making bribe) the thing described in the charge in this case as (read from charge) . 3. The (read from charge) was something of value, benefit, or advantage to [ (defendant) ] [a person in whose welfare (defendant) was interested] not authorized by law . 4. The [request] [solicitation] [acceptance] [agreement to accept] was corruptly made for the past, present, or future exertion of any influence upon or with (person sought to be influenced) regarding any act or omission which a. [ (Person making bribe) believed to be [within the official discretion of (person sought to be influenced) ] . ] . [in violation of a public duty of (person sought to be influenced) ] . ] . [in performance of a public duty of (person sought to be influenced) ] . ] . a. [ (defendant) believed to be b. [ (defendant) represented as being [within [his] [her] official discretion] . ] . [in violation of [his] [her] public duty] . ] . [in performance of [his] [her] public duty] . ] . Definition §838.014(6), Fla.Stat “Corruptly” means acting knowingly and dishonestly for a wrongful purpose done with a wrongful intent and for the purpose of obtaining or receiving compensation for any benefit resulting from some act or omission of a public servant that is inconsistent with the proper performance of [his] [her] the public servant’s public duties . . . . 19.5 BRIBERY OF PUBLIC SERVANT §838.016(2), Fla.Stat To prove the crime of Bribery of a Public Servant, the State must prove the following four elements beyond a reasonable doubt: 1. (Person bribed) was a (office of person bribed) . 2. (Defendant) [gave] [offered] [promised] to (person bribed) the thing described in the charge in this case as (read from charge) . 3. The (read from charge) was something of value, benefit, or advantage to [ (person bribed) ] [a person in whose welfare (person bribed) was interested] not authorized by law . 4. The [gift] [offer] [promise] was corruptly made for the past, present, or future exertion of any influence upon or with (person sought to be influenced) regarding any act or omission that Give 4a or 4b as applicable [within the official discretion of (person sought to be influenced) ] . ] . [in violation of a public duty of (person sought to be influenced) ] . ] . [in performance of a public duty of (person sought to be influenced) ] . ] . Dade County Bar to fill LSGM seats [within the official discretion of (person bribed) ] . ] . a. [ (defendant) believed to be Give if applicable A defendant who believed that what [he] [she] was doing was morally right is not insane if the defendant knew that what [he] [she] was doing violated societal standards or was against the law . All persons are presumed to be sane. The defendant has the burden of proving the defense of insanity by clear and convincing evidence. Clear and convincing evidence is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation, about the matter in issue . However, if the evidence causes you to have a reasonable doubt concerning the defendant’s sanity, then the presumption of sanity vanishes and the State must prove beyond a reasonable doubt that the defendant was sane. In determining the issue of insanity, you may consider the testimony of expert and nonexpert witnesses. The question you must answer is not whether the defendant is insane today, or has ever been insane, but simply if the defendant was insane at the time the crime was allegedly committed. Give if applicable Unrestrained passion or ungovernable temper is not insanity, even though the normal judgment of the person is be overcome by passion or temper. Give if applicable If the evidence establishes that the defendant had been adjudged insane by a court, and has not been judicially restored to legal sanity, then you should assume the defendant was insane at the time of commission of the alleged crime, unless the evidence convinces you otherwise. If you find that (defendant) committed the crime but you find by clear and convincing evidence that the defendant was insane, as I have defined that term for you have a reasonable doubt that [he] [she] was sane at that time , then you should find [him] [her] not guilty by reason of insanity. If your verdict is that the defendant is not guilty by reason of insanity because insane , that does not necessarily mean [he] [she] will be released from custody. I must conduct further proceedings to determine if the defendant should be committed to a mental hospital, or given other outpatient treatment or released. 3.6(b) INSANITY — HALLUCINATIONS An issue in this case is whether (defendant) was insane when the crime allegedly was committed. A person is considered to be insane when: 1. ab The person had a mental infirmity, disease, or defect. 2. ab Because of this condition, the person had hallucinations or delusions which caused the person to honestly believe to be facts things which are not true or real. The guilt or innocence of a person suffering from such hallucinations or delusions is to be determined just as though the hallucinations or delusions were actual facts. If the act of the person would have been lawful had the hallucinations or delusions been the actual facts, the person is not guilty of the crime. If voluntary intoxication is raised by the defense, see 3.6(d). All persons are presumed to be sane. The defendant has the burden of proving the defense of insanity by clear and convincing evidence. Clear and convincing evidence is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation, about the matter in issue . However, if the evidence causes you to have a reasonable doubt concerning the defendant’s sanity, then the presumption of sanity vanishes and the State must prove beyond a reasonable doubt that the defendant was sane. In determining the issue of insanity, you may consider the testimony of expert and nonexpert witnesses. The question you must answer is not whether the defendant is insane today, or has ever been insane, but simply if the defendant was insane at the time the crime allegedly was committed. Give if applicable Unrestrained passion or ungovernable temper is not insanity, even though the normal judgment of the person be is overcome by passion or temper. Give if applicable If the evidence establishes that the defendant had been adjudged insane by a court, and has not been judicially restored to legal sanity, then you should assume the defendant was insane at the time of commission of the alleged crime, unless the evidence convinces you otherwise. If you find that (defendant) committed the crime but you find by clear and convincing evidence that the defendant was insane, as I have defined that term for you have a reasonable doubt that [he] [she] was sane at that time , then you should find [him] [her] not guilty by reason of insanity. If your verdict is that the defendant is not guilty by reason of insanity because insane , that does not necessarily mean [he] [she] will be released from custody. I must conduct further proceedings to determine if the defendant should be committed to a mental hospital, or given other outpatient treatment or released. 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: 1. 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. 2. 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. This case must not be decided for or against anyone because you feel sorry for anyone, or are angry at anyone. 4. Remember, the lawyers are not on trial. Your feelings about them should not influence your decision in this case. 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. When the jury is to be involved in a penalty phase, omit the second sentence of paragraph 5. . 6. Whatever verdict you render must be unani­mous, that is, each juror must agree to the same verdict. Give 7 if applicable 7. 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. 14.1 THEFT § 812.014, Fla.Stat. To prove the crime of Theft, the State must prove the following two elements beyond a reasonable doubt: 1. (Defendant) knowingly and unlawfully [obtained] [used] [endeavored to obtain] [endeavored to use] the (property alleged) of (victim) . 2. [He] [She] did so with intent to, either temporarily or permanently, [deprive (victim) of [his] [her] right to the property or any benefit from it.] [appropriate the property of (victim) to [his] [her] own use or to the use of any person not entitled to it.] Degrees; give if property is of monetary value up to extent of charge If you find the defendant guilty of theft, you must determine by your verdict whether: .. . Give if applicable h. [The property was [a will, codicil, or other testamentary instrument.] [a firearm.] [a motor vehicle.] [a commercially farmed animal.] [an aquaculture species raised at a permitted aquaculture facility.] [a fire extinguisher.] [2,000 or more pieces of fruit.] [taken from a posted construction site.] [a stop sign.] [anhydrous ammonia.] ] In e certified should be substituted for permitted [a stop sign] should be added to e. Should 812.014(2)(d) and (e) provisions. Other provisions are not included in instruction. Several amendments since 1992 so review is needed. .. . 3.6(f) JUSTIFIABLE USE OF DEADLY FORCE 10/85 charge reworded 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. 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 likely to cause death or great bodily harm . “Deadly force” is defined as force likely to cause death or great bodily harm. Give if applicable § 782.02, Fla.Stat. The use of deadly force likely to cause death or great bodily harm 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 any dwelling house occupied by [him] [her], or 4. any attempt to commit (applicable felony) in any dwelling house occupied by [him] [her]. [in violation of a public duty of (person bribed) ] . ] . [in performance of a public duty of (person bribed) ] . ] . [within the official discretion of (person sought to be influenced) ] . ] . [in violation of the public duty of (person sought to be influenced) ] . ] . [in performance of the public duty of (person sought to be influenced) ] . ] . Definition §838.014(6), Fla.Stat “Corruptly” means acting knowingly and dishonestly for a wrongful purpose done with a wrongful intent and for the purpose of obtaining or receiving compensation for any benefit resulting from some act or omission of a public servant that is inconsistent with the proper performance of [his] [her] public duties . .. . Give as applicable a. committed aggravated battery upon (victim) b. willfully tortured (victim) c. maliciously punished (victim) d. willfully and unlawfully caged (victim) e. knowingly or willfully committed child abuse upon (victim) and in so doing caused great bodily harm, permanent disability, or permanent disfigurement. 2. (Victim) was under the age of 18 years. Definitions: Give as applicable In order to prove that an aggravated battery was committed, the state must prove the following: 1. (Defendant) intentionally Give as applicable a. touched or struck (victim) against the will of (victim) b. caused bodily harm to (victim) 2. In so doing, (defendant) intentionally or knowingly caused [great bodily harm] [permanent disability] [permanent disfigurement] or [used a deadly weapon] A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily harm. “ Willfully” means knowingly, intentionally, and purposely. “ Maliciously” means done from ill will, hatred, spite, or an evil intent wrongfully, intentionally, and without legal justification or excuse. Maliciousness may be established by circumstances from which one could conclude that a reasonable parent would not have engaged in the damaging acts toward the child for any valid reason and that the primary purpose of the acts was to cause the victim unjustifiable pain or injury. Give in all cases if 1(e) is alleged “Child Abuse” means [the intentional infliction of physical or mental injury upon a child] [an intentional act that could reasonably be expected to result in physical or mental injury to a child] [active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or mental injury to a child]. 19.1 BRIBERY OF PUBLIC SERVANT §838.015(1), Fla.Stat. To prove the crime of Bribery of a Public Servant, the State must prove the following four elements beyond a reasonable doubt: 1. (Person bribed) was a (office of person bribed) . 2. (Defendant) [gave] [offered] [promised] to (person bribed) the thing described in the charge in this case as (read from charge) . 3. The (read from charge) was something of value, benefit, or advantage to [ (person bribed) ] [a person in whose welfare (person bribed) was interested] not authorized by law . 4. The [gift] [offer] [promise] was made for the purpose of corruptly influencing (person bribed) in the performance of some act or omission that Give 4a or 4b as applicable December 1, 2003 Regular News b. [(defendant) represented as being 2. (Defendant) initially provoked the use of force against [himself] [herself], unless: 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 likely to cause death or great bodily harm to (assailant) . 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 deadly force likely to cause death or great bodily harm , but (assailant) continued or resumed the use of force. last_img

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