APPENDIX C Jay Thomas - Florida State Supreme · PDF fileAPPENDIX C Jay Thomas. 2 November 27, ... The wording in Part B is more concise ... Verdict Form which item or items that you

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APPENDIX C

Jay Thomas

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November 27, 2006 Hon. Terry D. Terrell Standard Jury Instructions Committee in Criminal Cases Chair c/o Les Garringer Office of the General Counsel Office of the State Courts Administrator 500 S Duval St Tallahassee, FL 32399-1900 Dear Judge Terrell: The following are suggested corrections to the draft Standard Jury Instructions on Sexual Offenders and Sexual Predators published in the November 1, 2006, issue of The Florida Bar News.

One key point common to the suggestions is that many of the Proposed Elements (usually Element 3) contain two or more independent elements, each of which has to be proven separately by the State (or conceded or stipulated). With the Proposed Instructions as worded, jurors are going to have to parse out these constituent elements and (hopefully) figure out that if any one constituent fails, the whole element fails. To make the Proposed Elements as foolproof as possible, the constituent elements should be parsed out now, with each of them separately numbered or lettered.

When I provide a suggested rewording of an instruction and include therein additional recommended phrasing changes not separately noted but that I want to bring to the committee's attention, I use a broken underline. To keep track of what I was doing, I included the appropriate statute side by side with my suggested rewrite of the Proposed Element in question. I hope that the suggestions will be useful to the committee. Sincerely, Jay Thomas Staff Attorney 2d DCA

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A. Sexual Offenders : Proposal #1 (§ 943.0435(2)(a), (b)) [? Predator #1, #2] ? Italicized instruction after Element 1 ("If the defendant offers to stipulate . . ."): The wording

throughout Part A, Sexual Offenders, and the wording of this instruction throughout Part B, Sexual Predators, is different, even though the meaning appears to be the same. The wording should be made consistent. The wording in Part B is more concise (less redundant), so I would suggest adopting it in Part A as well.

- NOTE: This suggestion applies to all proposed instructions so is not repeated below.

? Element 2: It may be worthwhile to cover the various temporal possibilities using the bracket method, in case the defendant has already moved away from the residence in question:

(Defendant) [established] [maintains] [maintained] a permanent or temporary residence in (name of county) County, Florida.

- NOTE: This suggestion applies to Element 2 in all the offender and predator Proposals (other than the proposed definitions) so is not repeated below.

? Element 3b: Add bracket at end: ". . . private correctional facility.]"

? Element 3c:

• This is a long, confusing list. For one thing, the commas separating the items should be changed to semicolons, with commas reserved for use within items that have their own complex internal structure, such as the long explanatory phrase about addresses (". . . , within and out of state, including a rural route address and a post office box; . . .").

However, I think the easiest resolution is to the use the judge- instruction- in-parentheses method found in Sexual Predator Proposal #11, Element 3c. (For some reason, the drafters used this style in that one place only.) Let the parties and the court work from the statute to fill in the items.

• However, even if the wording in Sexual Predator Proposal #11, Element 3c, is adopted, there will still be an ambiguity and potentially appealable issue. The problem is the "failed to" at the beginning (essentially a negative, equivalent to "did not") combined with the "and" at the end of the list of items. For example, assume that the wording in Sexual Predator Proposal #11, Element 3c, is adopted, and the instruction ends up reading, "John Smith knowingly failed to provide an office of the Sheriff of Nassau County with his social security number, weight, place of employment, and address of legal residence." Does the wording mean that this element is satisfied only if the evidence shows that the defendant failed to provide every item in the list? Or is it satisfied if the jury determines that the State's evidence shows that the defendant failed to provide just one (or perhaps several) items? Grammatically, I think the element is satisfied only if the evidence shows that the defendant fails to provide every item in the list. However, a reasonable interpretation of the statute is that if the defendant fails to provide any one or more of the items, he violates the statute. As such, the Proposed Element needs to be reworded.

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For situations in which the defendant fails to provide multiple items, my suggested rewording reads:

(Defendant) . . . knowingly failed to provide . . . the Sheriff . . . with . . . any one or more the following items: [his] [her] (name the unprovided registration items charged, as worded in the statute; separate the last two items with "and").

This is probably still not good enough. For example, assume in a particular situation that the judge reads, "John Smith knowingly failed to provide the Sheriff with any one or more of the following items: his social security number, weight, and place of employment", and that the jury comes back with a guilty verdict. On appeal, the defendant could argue that because we cannot be sure as to whether all six jurors were unanimous on any one of the three items, the verdict cannot stand. Therefore, I guess the verdict form would have to include a list of the items charged, with a space to check off each one. As long as the jurors are explicitly unanimous about at least one item, then the element is satisfied and the verdict will stand. All this is incorporated into the suggested rewording below.

This seems rather complicated for something that on the surface appears so simple, but it's the only way I could think of to get around the difficulties. If the committee can think of a simpler solution, by all means use it.

• Under Proposal #9, I suggest eliminating the definition of "register as a sex offender", which appears to be redundant with instructions such as the one here. If this definition is eliminated, the phrase about the prohibition against providing only post office boxes would have to be included in the instruction here and in similar instructions in which failure to provide an address can be charged. I reworded this aspect of the instruction in line with what I take the statute to mean. Reading simply the statutory language "A post office box shall not be provided in lieu of a physical residential address," whether in the definition or in a substantive instruction, will not necessarily tell the jurors clearly what they're supposed to find.

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• Suggested rewording:

(Statute for reference) Suggested instruction

(2) A sexual offender shall:

(b) Provide his or her name, date of birth, social security number, race, sex, height, weight, hair and eye color, tattoos or other identifying marks, occupation and place of employment, address of permanent or legal residence or address of any current temporary residence, within the state and out of state, including a rural route address and a post office box, date and place of each conviction, and a brief description of the crime or crimes committed by the offender. A post office box shall not be provided in lieu of a physical residential address.

3. (Defendant)

c. knowingly failed to provide an office of the Sheriff of (name of county) County with [[his] [her] (name the single unprovided registration item charged, as worded in the statute)] [any one or more the following items: [his] [her] (name the unprovided registration items charged, as worded in the statute; separate the last two items with "and")].

Read only if the defendant is charged with failing to provide a physical address:

The court now instructs you that, although a sexual offender must provide a post office box if [he] [she] has one, [his] [her] provision of a post office box without also providing a physical address is equivalent to not providing an address.

Read only if more than one item is charged in Element 3c:

Your verdict must be unanimous with respect to at least one item that (defendant) has been charged with failing to provide. You must indicate on the Verdict Form which item or items that you unanimously agree (defendant) failed to provide.

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A. Sexual Offenders : Proposal #2 (§ 943.0435(2)(b)(1)) [? Predator #3] ? Element 1b: Delete bracket at end.

? Element 3a:

• Delete comma before "where (defendant) resides".

• The "failed to . . . and" problem of Element 3c of sexual offender Proposal #1 applies here as well.

• It would appear that the State would have to prove as a foundational element that the sexual offender does in fact live in a motor vehicle, trailer, etc. Thus, this fact should be reflected in a separate element.

• It may be a mistake in the statute, but the statute requires reporting to "the department", which means the FDLE. § 943.02(1). The Proposed Instruction reads "Sheriff". Can a jury instruction make such a correction? (Actually, § 943.0435(1)(b) fails to specify to whom the offender is supposed to provide the information. Presumably, "Sheriff" carries over from § 943.0435(1)(a).)



1. If the sexual offender's place of residence is a motor vehicle, trailer, mobile home, or manufactured home, as defined in chapter 320, the sexual offender shall also provide to the department written notice of the vehicle identification number; the license tag number; the registration number; and a description, including color scheme, of the motor vehicle, trailer, mobile home, or manufactured home. . . .

3. (Defendant)

a.

i. uses as [his] [her] place of residence a [motor vehicle] [trailer] [mobile home] [manufactured home]; and

ii. knowingly failed to provide ??an office of the Sheriff of (name of county) County?? ??the Florida Department of Law Enforcement?? with [the (name the single unprovided registration item charged, as worded in the statute )] [any one or more the following items: (name the unprovided registration items charged, as worded in the statute; separate the last two items with "and")] of the [motor vehicle] [trailer] [mobile home] [manufactured home] where [he] [she] resides.

Read only if more than one item is charged in Element 3.a.ii.:


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? Element 3b:


• As with Element 3a, the State would have to prove that the sexual offender resides on a boat, etc.

• "FDLE" or "Sheriff"?



1. . . . If the sexual offender's place of residence is a vessel, live-aboard vessel, or houseboat, as defined in chapter 327, the sexual offender shall also provide to the department written notice of the hull identification number; the manufacturer's serial number; the name of the vessel, live-aboard vessel, or houseboat; the registration number; and a description, including color scheme, of the vessel, live-aboard vessel, or houseboat.

3. (Defendant)

b.

i. uses as [his] [her] place of residence a [vessel] [live-aboard vessel] [houseboat]; and

ii. knowingly failed to provide ??an office of the Sheriff of (name of county) County?? ??the Florida Department of Law Enforcement?? with [the (name the single unprovided registration item charged, as worded in the statute)] [any one or more the following items: (name the unprovided registration items charged, as worded in the statute; separate the last two items with "and")] of the [vessel] [live-aboard vessel] [houseboat] where [he] [she] resides.

Read only if more than one item is charged in Element 3.b.ii.:


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A. Sexual Offenders : Proposal #3 (§ 943.0435(2)(b)2.) [? Predator #4] ? Statute number in heading should be 943.0435, not .043.

? Element 3a:

• Delete comma after "vocation". (Cf. analogous sentence in Sexual Predators Proposal #4.)


• This Proposed Element actually comprises two elements that the State must prove, most likely with separate sets of evidence.

• "FDLE" or "Sheriff"?



2. If the sexual offender is enrolled, employed, or carrying on a vocation at an institution of higher education in this state, the sexual offender shall also provide to the department the name, address, and county of each institution, including each campus attended, and the sexual offender's enrollment or employment status. . . .

3. (Defendant)

a.

i. is enrolled, employed, or carrying on a vocation at an institution of higher education in this state; and

ii. knowingly failed to provide ??an office of the Sheriff of (name of county) County?? ??the Florida Department of Law Enforcement?? with (the name the single unprovided registration item charged, as worded in the statute)] [any one or more the following items: (name the unprovided registration items charged, as worded in the statute; separate the last two items with "and")].



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? Element 3b:

• As with Element 3a, the fact that the defendant is (or was) enrolled in school, etc., is a separate element and should be listed as such. The fact that he changed status is also a separate element.



2. If the sexual offender is enrolled, employed, or carrying on a vocation at an institution of higher education in this state, . . . Each change in enrollment or employment status shall be reported in person at the sheriff's office, within 48 hours after any change in status. . . .

3. (Defendant)

b.

i. [is] [was] enrolled, employed, or carrying on a vocation at an institution of higher education in this state; and

ii. undertook a change in [his] [her] enrollment or employment status; and

iii. knowingly failed to report this change in person at an office of the Sheriff of (name of county) County within 48 hours after the change.

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A. Sexual Offenders : Proposal #4 (§ 943.0435(3)) [? Predator #5] ? Correct spelling in heading: FAILURE TO REGISTER

? Statute number in heading should be 943.0435, not .043.

? Element 3a:

• Delete comma between "County" and "and". There are only two items, so no comma is needed.

• Again, this represents two elements: (1) failing to report within 48 hours; (2) not securing a driver's license, etc. The State has to prove both.



(3) Within 48 hours after the report required under subsection (2), a sexual offender shall report in person at a driver's license office of the Department of Highway Safety and Motor Vehicles, unless a driver's license or identification card was previously secured or updated under s. 944.607. At the driver's license office the sexual offender shall: (a) If otherwise qualified, secure a

Florida driver's license, renew a Florida driver's license, or secure an identification card.

3. (Defendant)

a.

i. pursuant to law, registered as a sexual predator with an office of the Sheriff of (name of county) County; and

ii. knowingly failed to report in person at a driver's license office of the Department of Highway Safety and Motor Vehicles within 48 hours after so registering to present proof of this registration; and

iii. knowingly failed to secure a Florida driver's license, renew a Florida driver's license, or secure an identification card.

? Element 3b:

• The wording "knowingly failed to identify himself . . . by providing proof . . ." is not what the statute says. The statute has four items expressed in simple linear fashion: identifying oneself as a sexual offender, providing proof of registration, providing registration information if requested, and submitting to being photographed. The suggested rewording below uses the bracket method to reflect this meaning.

• The requirements of providing registration information and submitting to being photographed are missing from the Proposed Element. They are included in the suggested rewording below.

• The requirements of pay costs (§ 943.0435(3)(b)) and providing fingerprint or other identification (§ 943.0435(3)(c)) are also missing from the Proposed Element. They are included in the suggested rewording below.

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• This Proposed Element needs to be separated into its constituent elements.



(3) Within 48 hours after the report required under subsection (2), a sexual offender shall report in person at a driver's license office of the Department of Highway Safety and Motor Vehicles, unless a driver's license or identification card was previously secured or updated under s. 944.607. At the driver's license office the sexual offender shall:

(a) If otherwise qualified, secure a Florida driver's license, renew a Florida driver's license, or secure an identification card. The sexual offender shall identify himself or herself as a sexual offender who is required to comply with this section and shall provide proof that the sexual offender reported as required in subsection (2). The sexual offender shall provide any of the information specified in subsection (2), if requested. The sexual offender shall submit to the taking of a photograph for use in issuing a driver's license, renewed license, or identification card, and for use by the department in maintaining current records of sexual offenders.

(b) Pay the costs assessed by the Department of Highway Safety and Motor Vehicles for issuing or renewing a driver's license or identification card as required by this section.

(c) Provide, upon request, any additional information

3. (Defendant) b.

i. pursuant to law, registered as a sexual predator with an office of the Sheriff of (name of county) County; and

ii. reported in person at a driver's license office of the Department of Highway Safety and Motor Vehicles to secure a Florida driver's license, renew a Florida driver's license, or secure an identification card within 48 hours after so registering; and

iii. in the process of securing or renewing a Florida driver's license or securing an identification card, [(read only if one item is charged) knowingly failed to] [(read only if more than one item is charged; separate the last two items with "and") knowingly failed to undertake any one or more of the following]: [identify [himself] [herself] as a sexual offender] [provide proof that [he] [she] registered as a sexual offender] [provide registration information, namely (specify which information), although requested to do so] [submit to the taking of a photograph for use in issuing a driver's license, renewed license, or identification card and for use by the Department of Corrections in maintaining current records of sexual offenders] [pay the costs assessed by the Department of Highway Safety and Motor Vehicles for issuing or renewing a driver's license or identification card] [provide, upon request, [fingerprints] [additional

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necessary to confirm the identity of the sexual offender, including a set of fingerprints.

information necessary, namely (specify the necessary information) ] to confirm the identity of the sexual offender].

Read only if more than one item is charged in Element 3.b.iii.:


- Note: Within Element 3.b.iii., the two items "[provide registration information,

namely (specify which information), although requested to do so]" and "[pay the costs assessed by the Department of Highway Safety and Motor Vehicles for issuing or renewing a driver's license or identification card] [provide, upon request, [fingerprints] [additional information necessary, namely (specify the necessary information)] to confirm the identity of the sexual offender]" could have multiple choices within them. Presumably the verdict form would thus have need "sub-options" that would have to be checked off. For example:

John Smith knowingly failed to:

___ identify himself as a sexual offender.

___ provide proof that he registered as a sexual offender.

___ provide the following registration information:

___ social security number

___ place of employment

___ submit to the taking of a photograph for use in issuing a driver's license, renewed license, or identification card and for use by the Department of Corrections in maintaining current records of sexual offenders.

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A. Sexual Offenders : Proposal #5 (§ 943.0435(4)) [? Predator #7] ? Heading: Include change of name as well as of address. Suggested rewording:

(Failure to Report Change of Name or Address Within the State or Jurisdiction)

? Statute number in heading should be 943.0435, not .043.

? Element 3a:

• Delete comma between "renewal" and "or". This "or" separates the options in a two-option list (namely, when the card was subject to renewal or within 48 hours of various changes). There is therefore no need for a comma.

• Delete comma between "residence" and "or". This "or" separates the options in another two-option list, within the second main option. There is therefore no need for a comma.

• The options are better handled with brackets, so the judge will not have to read superfluous items in a given case. (Therefore, the above two suggestions concerning commas become moot.)



(4)

(a) Each time a sexual offender's driver's license or identification card is subject to renewal, and, without regard to the status of the offender's driver's license or identification card, within 48 hours after any change in the offender's permanent or temporary residence or change in the offender's name by reason of marriage or other legal process, the offender shall report in person to a driver's license office, and shall be subject to the requirements specified in subsection (3). . . .

3. (Defendant)

a. knowingly failed to report in person to a driver's license office [when [his] [her] driver's license or identification card was subject to renewal] [within 48 hours after any change in [his] [her] permanent or temporary residence] [within 48 hours after any change in [his] [her] name by reason of [marriage] [(specify other legal process)]].

? Element 3b:

• Add "to": "knowingly failed to report in person to an office of . . . ."

• As written, this element really comprises several elements, which should be listed separately.

• The option "maintain" (in "establish or maintain") sounds implausib le in the context. Within 48 hours after moving away from a residence, the next step is to establish a residence, not "maintain" one. I took care of this by using the bracket method.

• This element apparently corresponds to § 943.0435(4)(b). Shouldn't the following components of this paragraph be incorporated into the Instruction?

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? The last sentence of the statutory subsection ("The sexual offender must provide an address for the residence or other location that he or she is or will be occupying during the time in which he or she fails to establish or maintain a permanent or temporary residence.")

? The date on which he intends to vacate or vacated his residence.

? The requirement that the registration information of ¶ (2)(b) be provided or updated.

(Quite frankly, I can't tell from this statutory subsection what exactly constitutes the offense. According to the Proposed Instruction, the first sentence of the statute alone — merely failing to report to the Sheriff — constitutes an offense. If so, Proposed Element 3b correctly reflects the statute, although it still should be parsed out into elements. Alternatively, the other items listed immediately above may also constitute offenses. My suggested rewrite, below, accounts for both these alternatives. Note also that I crossed out part of the wording that may technically be correct but seems superfluous.)

Note: I did not know how to show the option "[he] [she]" followed immediately by a series of bracketed options. In such situations, I tentatively used "he/she".



(4)

(b) A sexual offender who vacates a permanent residence and fails to establish or maintain another permanent or temporary residence shall, within 48 hours after vacating the permanent residence, report in person to the sheriff's office of the county in which he or she is located. The sexual offender shall specify the date upon which he or she intends to or did vacate such residence. The sexual offender must provide or update all of the registration information required under paragraph (2)(b). The sexual offender must provide an address for the residence or other location that he or she is or will be

3.

b.

i. (Defendant) vacated [his] [her] permanent residence.

ii. (Defendant) subsequently failed to [establish] [maintain] another temporary or permanent residence.

iii. Give 3.b.iii.(1) or 3.b.iii.(2) as appropriate.

(Defendant)

(1) knowingly failed to report in person to an office of the Sheriff of (name of county) County in which [he] [she] is located within 48 hours after vacating [his] [her] permanent residence and failing to [establish] [maintain] another permanent or temporary residence.

(2) reported to the Sheriff of (name of county) County in which [he] [she] is located within 48 hours after vacating [his] [her] permanent

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occupying during the time in which he or she fails to establish or maintain a permanent or temporary residence.

residence, that he/she [established] [maintained] another temporary or permanent residence, but [(read only if one item is charged) knowingly failed to] [(read only if more than one item is charged; separate the last two items with "and") knowingly failed to undertake any one or more of the following]: [specify the date on which he/she [intends to vacate] [vacated] his/her permanent residence] [[provide] [update] his/her (name the unprovided items charged, as worded in the statute)] [[provide] [update] the address for the residence or other location that [he] [she] will be occupying during the time in which [he] [she] fails to [establish] [maintain] a permanent or temporary residence].

Read only if more than one item is charged in Element 3.b.iii.(2):


- Note: The additional note at the end of Element 3b of Proposal #4 applies.

? Element 3c:

• The meaning of the 48-hour timeframe in the statute (§ 943.043(4)(c)) is ambiguous. It could conceivably mean either:

(a) The defendant tells the Sheriff he plans to leave Florida but then decides to stay. Within 48 hours of telling the Sheriff of his intent to leave, he must tell the Sheriff of his change of mind. OR

(b) The defendant tells the Sheriff he plans to leave Florida on a certain date but then decides to stay. Within 48 hours of his intended (but now aborted) date of departure, he must tell the Sheriff of his change of mind.

Option (a), which the Proposed Instruction seems to reflect, doesn't make sense and would not work in practice. Example: On November 1, defendant tells Sheriff he plans

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to leave Florida on November 9. On November 5, defendant changes his mind and decides to stay in Florida. According to option (a), defendant is supposed to tell the Sheriff by November 3 (48 hours from November 1) that he will be staying in Florida, even though he hasn't changed his mind yet.

Therefore, option (b) must be what the statute means. In the same example, the defendant would have to tell the Sheriff by November 11 (48 hours from November 9) that he changed his mind.



(4)

(c) A sexual offender who remains at a permanent residence after reporting his or her intent to vacate such residence shall, within 48 hours after the date upon which the offender indicated he or she would or did vacate such residence, report in person to the agency to which he or she reported pursuant to paragraph (b) for the purpose of reporting his or her address at such residence. . . .

3.

c.

i. (Defendant) reported to an office of the Sheriff of (name of county) County [his] [her] intent to vacate [his] [her] permanent residence.

ii. After having so reported, (defendant) instead remained in [his] [her] permanent residence.

iii. Within 48 hours after the date of [his] [her] originally intended departure from [his] [her] permanent residence, (defendant) knowingly failed to report to an office of the Sheriff of (name of county) County that he instead decided to remain in [his] [her] permanent residence.

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A. Sexual Offenders : Proposal #6 (§ 943.0435(7)) [? Predator #10] ? Statute number in heading should be 943.0435, not .043.

? The judge instruction "Give 1a or 1b as applicable" is missing.

? Element 3:

• Change "Sheriff's Office" to "an office of the Sheriff" for consistency with other Proposed Instructions.

• Best to break down into separate elements.

• It would seem that the date on which the offender intended to move would have to be established.



(7) A sexual offender who intends to establish residence in another state or jurisdiction other than the State of Florida shall report in person to the sheriff of the county of current residence within 48 hours before the date he or she intends to leave this state to establish residence in another state or jurisdiction. The notification must include the address, municipality, county, and state of intended residence.

3. (Defendant) intended to leave this State to establish residence in another state or jurisdiction on (date).

4. (Defendant) knowingly failed to report in person to an office of the Sheriff in the county of [his] [her] current residence in Florida[??] within 48 hours before the date on which [he] [she] intended to leave this state to establish residence in another state or jurisdiction.

? Additionally: An element like Element 3b of Sexual Predator Proposal #10, setting forth a

violation of the underlined provision, above, would seem to be necessary.

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A. Sexual Offenders : Proposal #7 (§ 943.0435(8)) [? Predator #9] ? Statute number in heading should be 943.0435, not .043.

? The judge instruction "Give 1a or 1b as applicable" is missing.

? Element 3:

• The same ambiguity exists as in Proposal #5, Element 3c.

• It would be better to break this element down into constituent elements.



(8) A sexual offender who indicates his or her intent to reside in another state or jurisdiction other than the State of Florida and later decides to remain in this state shall, within 48 hours after the date upon which the sexual offender indicated he or she would leave this state, report in person to the sheriff to which the sexual offender reported the intended change of residence, and report his or her intent to remain in this state.

3. (Defendant) indicated to an office of the Sheriff of (name of county) County [his] [her] intent to leave this state on (date of intended departure) and reside in another state or jurisdiction.

4. (Defendant) later decided to remain in this state.

5. Within 48 hours after the date of [his] [her] originally intended departure from this state, (defendant) knowingly failed to report to an office of the Sheriff of (name of county) County that he instead decided to remain in this state.

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A. Sexual Offenders : Proposal #8 (§ 943.0435(14)(a)) [? Predator #11] ? Statute number in heading should be 943.0435, not .043.

? The Instruction probably will probably have to include sub- instructions for all the requirements of § 943.0435(14)(a)1., 2., 3., which are basically repetitions of several other instructions. I did not include these in my suggested rewording.

- § 943.0435(14)(a)1. corresponds to Element 3c of Proposal #1 and § 943.0435(2)(b), but includes a few additional items (age; date . . . of any employment; vehicle make, model, color, and license tag number; fingerprints; photograph).

- § 943.0435(14)(a)2. corresponds to Elements 3a and 3b of Proposal #3 and § 943.0435(2)(b)2.

- § 943.0435(14)(a)3. corresponds to Elements 3a and 3b of Proposal #2 and § 943.0435(2)(b)1.

? Element 3a:

• For consistency with other Proposals, use the same wording for the Sheriff: "an office of the Sheriff in the county in which [he] [she] resides."

• The "to reregister" at the end is awkward. Suggestion: "knowingly failed to reregister by reporting in person . . . otherwise located."

• I don't think simply reciting "each year" is precise enough for purposes of instructing the jurors. The year needs to be specified.



(14)

(a) A sexual offender must report in person each year during the month of the sexual offender's birthday . . . to the sheriff's office in the county in which he or she resides or is otherwise located to reregister. . . .

3. (Defendant)

a. knowingly failed to reregister by reporting in person during [his] [her] birthday month in (state year) to an office of the Sheriff in the county in which [he] [she] resides or is otherwise located.

- Note: If the defendant has failed to reregister during more than one year, the Instruction should probably be read in its entirety for each year. If the judge were to read, e.g., "2005 and 2006" in a single instruction, and only 2005 applies, the element fails and there can be no conviction.

? Element 3b:

• Same as Element 3a re wording for the Sheriff.

• Same as Element 3a: "knowingly failed to reregister by reporting in person . . . otherwise located."

• Same as Element 3a regarding the need to specify the year, but position the statement of year as shown below to avoid ambiguity.

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(14)

(a) A sexual offender must report in person each year . . . during the sixth month following the sexual offender's birth month to the sheriff's office in the county in which he or she resides or is otherwise located to reregister. . . .

3. (Defendant)

b. knowingly failed to reregister by reporting in person during the sixth month following [his] [her] (state year) birthday month to an office of the Sheriff in the county in which [he] [she] resides or is otherwise located.

? Element 3c: The statute lists only "the department" (i.e., FDLE) as the source of address verification correspondence, yet the Proposed Instruction lists the FDLE, the DOC, and the Sheriff as prongs — ??

? Additionally: Is an instruction analogous to Element 3c of Sexual Predator #11 needed?

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A. Sexual Offenders : Proposal #9 (§ 943.0435(1)) ? Should statutory reference be "§ 943.0435(1))"?

? Definition of "Sexual offender"

• Elements 1b, 1d, 2b, 2d, 4b, 4d: Move the word "similar" as follows: ". . . a criminal offense similar to . . ."

• Elements 2, 3, and 4 are separated by an "or", so they are mutually disjunctive. Therefore, the judge instruction "Give 3 or 4 as applicable" (currently positioned before Element 3) should be moved to the line above Element 2 (actually, to the line above "§ 943.0435(1)(a)(2), Fla. Stat.") and be changed to read: "Give 2, 3, or 4 as applicable."

• The judge instructions preceding Elements 1c, 2c, and 4c are missing newly added statute numbers. See ch. 2006-200, Laws of Fla. The missing statutes are: § 796.035 and § 985.4045(1).

• Element 3:

? Brackets seem wrong:

- I would move the left bracket that appears before "as a result of such designation" to just before "was subjected to".

- This first option then needs its own closing right bracket, after "[registration and community or public notification] ]".

? This Proposed Element has multiple constituent elements.

22

? Suggested rewording:


(1)

(a)

2. Establishes or maintains a residence in this state and who has not been designated as a sexual predator by a court of this state but who has been designated as a sexual predator, as a sexually violent predator, or by another sexual offender designation in another state or jurisdiction and was, as a result of such designation, subjected to registration or community or public notification, or both, or would be if the person were a resident of that state or jurisdiction, without regard to whether the person otherwise meets the criteria for registration as a sexual offender; . . .

3.

a. [Established] [Maintains] [Maintained] a residence in this state; and

b. has not been designated as a sexual predator by a court of this state; but

c. has been designated [a sexual predator] [a sexually violent predator] [a (name other sexual offender designation) in (name of state or other jurisdiction)]; and

d. as a result of such designation [was subjected to [registration] [community or public notification] [registration and community or public notification]] [would be subjected to [registration] [community or public notification] [registration and community or public notification] if [he] [she] were a resident of (name of state or other jurisdiction)]].

The court now instructs you that (defendant) has not been designated as a sexual predator by this state.

23

• Element 4:

? The statute is somewhat sloppily worded. Just as in Element 3, there needs to be an "and" between "in this state" and "who is in the custody." This means, further, that this Proposed Element needs to be divided into its constituent elements.



(1)

(a)

3. Establishes or maintains a residence in this state who is in the custody or control of, or under the supervision of, any other state or jurisdiction as a result of a conviction for committing, or attempting, soliciting, or conspiring to commit, any of the criminal offenses proscribed in the following statutes or similar offense in another jurisdiction: [statutory references omitted].

4.

a. [Established] [Maintains] [Maintained] a residence in this state; and

b. is in the custody or control or under the supervision of [(name of state or other jurisdiction) as a result of a conviction for committing, attempting, soliciting, or conspiring to commit:

i. <Fill in the crime listings. Proposed Instruction options 4a, 4b, 4c, and 4d become, respectively, 4b.i., 4b.ii., 4b.iii., and 4b.iv. Use phrasing "a criminal offense similar to", not "a similar criminal offense to".>

? Definition of "Knowingly"

• Should the citation for this definition be included? (State v. Georgetti, 868 So. 2d 512 (Fla. 2001).)

• This definition comes across as too abstract. I guess a juror could figure out that the first prong, actual knowledge, refers to the defendant's actual knowledge. It seems less likely that a juror will figure out the second prong, that it is the State that must adduce proof of the probability of such knowledge. (I assume that this is what the second prong means. If it means something else, then please clarify.) Why not spell it all out? Suggested rewording:

"Knowingly" means either that (defendant) had actual knowledge of [his] [her] duty to register or that the State has demonstrated proof of the probability that (defendant) had such knowledge.

? Definition of "Register as a sexual offender"

• Separate main items with semicolons.

• When would this definition ever be given? In Proposal #1, for example, you spell out the necessary information in Element 3c anyway. Can this definition therefore be deleted?

24

• Assuming that this definition is deleted, the caveat "A post office box shall not be provided in lieu of a physical residential address" would no longer appear anywhere. I would suggest including it as a separate sub-instruction in each appropriate instruction in which failure to register an address could be charged.

? Other definitions

• Shouldn't the definition if "Institution of higher education" be included? § 943.0435(1)(e).

• Does the definition of "Change in enrollment or employment status" need to be included? § 943.0435(1)(e). (Refer to my suggested rewording of Proposal #3, which includes this term.)

25

B. Sexual Predators : Proposal #1 (§ 775.21(6)(b), (e)) [? Offender #1] ? The judge instruction "Give 1a or 1b as applicable" is missing.

? Element 2: That the defendant has established or maintains a residence in the Florida county is not found in § 775.21(6)(b), which corresponds to Element 3a. Thus, Element 2 should not be read if Element 3a is to be read. If the defendant is still in the custody of DOC or a private correctional facility (two of the three prongs in § 775.21(6)(b)), it makes sense not to read Element 2. If, however, the defendant is under the supervision of DOC (the third prong of § 775.21(6)(b)), presumably he's living in the community; as such, Element 2 would seem to be necessary. Nevertheless, the language of Element 2 is not found in § 775.21(6)(b), so it should not be read along with Element 3a. Because Element 2 goes only with Element 3b, it may be necessary to split Elements 3a and 3b into separate Proposed Instructions.

? Element 3a:

• This Proposed Element is constitutes two elements, which should be separated out.

• It would cut down on the verbiage if the Department of Corrections vs. private facility options were bracketed. (After all, the defendant can't be in two places at the same time.)

• Suggested rewording for the entirety of the instruction for § 775.21(6)(b):


(6)

(b) If the sexual predator is in the custody or control of, or under the supervision of, the Department of Corrections, or is in the custody of a private correctional facility, the sexual predator must register with the Department of Corrections. . . .

1. <As is>

2. <Delete>

3.2. (Defendant) is [in the custody or control of the Department of Corrections] [under the supervision of the Department of Corrections] [in the custody of a private correctional facility]; and

3. (Defendant) knowingly failed to register with the Department of Corrections as a sexual predator.

26

? Element 3b:

• This Proposed Element is constitutes two elements, which should be separated out.


(6)

(e) If the sexual predator is not in the custody or control of, or under the supervision of, the Department of Corrections, or is not in the custody of a private correctional facility, and establishes or maintains a residence in the state, the sexual predator shall register in person at the sheriff's office in the county in which the predator establishes or maintains a residence, within 48 hours after establishing permanent or temporary residence in this state. . . .

1. <As is>

2. <As is>

3. (Defendant) was not in the custody or control of or under the supervision of the Department of Corrections and was not in the custody of a private correctional facility; and

4. (Defendant) knowingly failed to register in person with an office of the Sheriff in the county where (Defendant) [established] [maintained] residence within 48 hours after (defendant) established permanent or temporary residence in this state.

27

B. Sexual Predators : Proposal #2 (§ 775.21(6)(a)1.) [? Offender #1] ? Element 3:

• The entity with which the predator must register according to first paragraph of § 775.21(6)(a)1. is "the department", i.e., the FDLE, not the Sheriff.

• The comments for Element 3c of Sexual Offenders Proposal #1 apply.



(6) REGISTRATION

(a) A sexual predator must register with the department by providing the following information to the department:

1. Name, social security number, age, race, sex, date of birth, height, weight, hair and eye color, photograph, address of legal residence and address of any current temporary residence, within the state or out of state, including a rural route address and a post office box, date and place of any employment, date and place of each conviction, fingerprints, and a brief description of the crime or crimes committed by the offender. A post office box shall not be provided in lieu of a physical residential address.

3. (Defendant) knowingly failed to provide the Florida Department of Law Enforcement with [[his] [her] (name the single unprovided registration item charged, as worded in the statute)] [any one or more the following items: [his] [her] (name the unprovided registration items charged, as worded in the statute; separate the last two items with "and")].



Read only if more than one item is charged in Element 3:


28

B. Sexual Predators : Proposal #3 (§ 775.21(6)(a)1.a.) [? Offender #2] ? The judge instruction "Give 1a or 1b as applicable" is missing.

? Element 3a:

• Delete comma before "where (defendant) resides".

• The entity with which the predator must provide the information is "the department", i.e., the FDLE, not the Sheriff.

• Some of the comments for Element 3a of Sexual Offenders Proposal #2 apply and are incorporated in the suggested rewording.



(6)

(a)

1.

a. If the sexual predator's place of residence is a motor vehicle, trailer, mobile home, or manufactured home, as defined in chapter 320, the sexual predator shall also provide to the department written notice of the vehicle identification number; the license tag number; the registration number; and a description, including color scheme, of the motor vehicle, trailer, mobile home, or manufactured home. . . .

3. (Defendant)

a.

i. uses as [his] [her] place of residence a [motor vehicle] [trailer] [mobile home] [manufactured home]; and

ii. knowingly failed to provide the Florida Department of Law Enforcement with [the (name the single unprovided registration item charged, as worded in the statute)] [any one or more the following items: (name the unprovided registration items charged, as worded in the statute; separate the last two items with "and")] of the [motor vehicle] [trailer] [mobile home] [manufactured home] where [he] [she] resides.



29

? Element 3b:


• Some of the comments for Element 3b of Sexual Offenders Proposal #2 apply and are incorporated in the suggested rewording.



(6)

(a)

1.

a. . . . If a sexual predator's place of residence is a vessel, live-aboard vessel, or houseboat, as defined in chapter 327, the sexual predator shall also provide to the department written notice of the hull identification number; the manufacturer's serial number; the name of the vessel, live-aboard vessel, or houseboat; the registration number; and a description, including color scheme, of the vessel, live-aboard vessel, or houseboat.

3. (Defendant)

b.

i. uses as [his] [her] place of residence a [vessel] [live-aboard vessel] [houseboat]; and

ii. knowingly failed to provide the Florida Department of Law Enforcement with [the (name the single unprovided registration item charged, as worded in the statute)] [any one or more the following items: (name the unprovided registration items charged, as worded in the statute; separate the last two items with "and")] of the [vessel] [live-aboard vessel] [houseboat] where [he] [she] resides.



30

B. Sexual Predators : Proposal #4 (§ 775.21(6)(a)1.b. [? Offender #3] ? The judge instruction "Give 1a or 1b as applicable" is missing.

? Element 3a:


• This Proposed Element actually comprises two elements that the State must prove.




(6)

(a)

1.

b. If the sexual predator is enrolled, employed, or carrying on a vocation at an institution of higher education in this state, the sexual predator shall also provide to the department the name, address, and county of each institution, including each campus attended, and the sexual predator's enrollment or employment status. . . .

3. (Defendant)

a.


ii. knowingly failed to provide the Florida Department of Law Enforcement with (the name the single unprovided registration item charged, as worded in the statute)] [any one or more the following items: (name the unprovided registration items charged, as worded in the statute; separate the last two items with "and")].



? Element 3b:

• As with Element 3a, the fact that the defendant is enrolled in school, etc., is a separate element and should be listed as such. The fact that he changed status is also a separate element.

31

• The choice of reporting to the Sheriff, or to the DOC but only if the defendant is being supervised by the DOC, is too confusing to cram into a single element. Indeed, the DOC option contains a separate element requiring proof: that the defendant is in fact being supervised by the DOC. Element 3b should therefore be separated into two options, with each option listing out the appropriate elements. (Note: I can't tell from the punctuation of the statute whether the defendant is supposed to report in person to the DOC if he's under the supervision of the DOC.)

• Suggested rewording (includes new Element/option 3c):


(6)

(a)

1.

b. . . . Each change in enrollment or employment status shall be reported in person at the sheriff's office, or the Department of Corrections if the sexual predator is in the custody or control of or under the supervision of the Department of Corrections, within 48 hours after any change in status.

3. (Defendant)

Read 3b. or 3c. as applicable.

b.


ii. undertook a change in [his] [her] enrollment or employment status; and

iii. knowingly failed to report this change in person at an office of the Sheriff of (name of county) County within 48 hours after the change.

c.

i. is in the custody of or under the supervision of the Department of Corrections; and

ii. is enrolled, employed, or carrying on a vocation at an institution of higher education in this state; and

iii. undertook a change in [his] [her] enrollment or employment status; and

iii. knowingly failed to report this change ??in person?? to the Department of Corrections within 48 hours after the change.

32

B. Sexual Predators : Proposal #5 (§ 775.21(6)(f)) [? Offender #4] ? Element 3a:

• The "or" after "community" does not reflect the language of § 775.21(6)(f), where the word is "including."




(6)

(f) Within 48 hours after the registration required under paragraph (a) or paragraph (e), a sexual predator who is not incarcerated and who resides in the community, including a sexual predator under the supervision of the Department of Corrections, shall register in person at a driver's license office of the Department of Highway Safety and Motor Vehicles and shall present proof of registration. . . .

3. (Defendant)

a.

i. was not incarcerated; and

ii. resided in the community, whether under the supervision of the Department of Corrections or not; and

iii. pursuant to law, registered as a sexual predator with an office of the Sheriff of (name of county) County; and

iv. knowingly failed to report in person at a driver's license office of the Department of Highway Safety and Motor Vehicles within 48 hours after so registering to present proof of this registration.

? Element 3b:

• The "or" after "community" does not reflect the language of § 775.21(6)(f), where the word is "including."


• When you break Element 3b into its constituent elements, the whole thing—in particular element v (below)—seems superfluous. The failure to report to the DHSMV is already covered by Element 3a, and failure to do this is enough to convict. The only way to make Element 3b significantly different from Element 3a would be to charge the defendant with properly reporting to DHSMV (element iv) but failing to secure a driver's license or ID. Both possibilities are shown with "??" below.

33



(6)

(f) Within 48 hours after the registration required under paragraph (a) or paragraph (e), a sexual predator who is not incarcerated and who resides in the community, including a sexual predator under the supervision of the Department of Corrections, shall register in person at a driver's license office of the Department of Highway Safety and Motor Vehicles and shall present proof of registration. At the driver's license office the sexual predator shall:

1. If otherwise qualified, secure a Florida driver's license, renew a Florida driver's license, or secure an identification card. . . .

3. (Defendant)

b.




iv. ??knowingly failed to report?? ??pursuant to law, reported?? in person at a driver's license office of the Department of Highway Safety and Motor Vehicles within 48 hours after so registering to present proof of this registration; and

v. knowingly failed to secure a Florida driver's license, renew a Florida driver's license, or secure an identification card.

? Element 3c:

• The elements of not being incarcerated and residing in the community need to be included in this option as well.

• The wording "knowingly failed to identify himself . . . by providing his . . . residence" is not what the statute says. The statute has three items expressed in simple linear fashion: identifying oneself as a predator, providing one's address, and submitting to being photographed. The suggested rewording below uses the bracket method to reflect this meaning.


• The requirements of pay costs (§ 775.21(6)(f)2.) and providing fingerprint or other identification (§ 775.21(6)(f)3.) are also missing from the Proposed Element. They are included in the suggested rewording below.

34

• § 775.21(6)(f)1. also contains the requirements about living in vehicles or vessels. Instructions probably need to be drafted. I did not include these variations in the suggested rewording.



(6)

(f) Within 48 hours after the registration required under paragraph (a) or paragraph (e), a sexual predator who is not incarcerated and who resides in the community, including a sexual predator under the supervision of the Department of Corrections, shall register in person at a driver's license office of the Department of Highway Safety and Motor Vehicles and shall present proof of registration. At the driver's license office the sexual predator shall:

1. If otherwise qualified, secure a Florida driver's license, renew a Florida driver's license, or secure an identification card. The sexual predator shall identify himself or herself as a sexual predator who is required to comply with this section, provide his or her place of permanent or temporary residence, including a rural route address and a post office box, and submit to the taking of a photograph for use in issuing a driver's license, renewed license, or identification card, and for use by the department in maintaining current records of sexual predators. A post

3. (Defendant)

c.




iv. reported in person at a driver's license office of the Department of Highway Safety and Motor Vehicles to secure a Florida driver's license, renew a Florida driver's license, or secure an identification card within 48 hours after so registering; and

v. in the process of securing or renewing a Florida driver's license or securing an identification card, [(read only if one item is charged) knowingly failed to] [(read only if more than one item is charged; separate the last two items with "and") knowingly failed to undertake any one or more of the following]: [identify [himself] [herself] as a sexual predator] [provide [his] [her] place of permanent or temporary residence, including a rural route address and a post office box, if any,] [submit to taking of a photograph for use in issuing a driver's license, renewed license, or identification card and for use by the Florida Department of Law

35

office box shall not be provided in lieu of a physical residential address. . . .

2. Pay the costs assessed by the Department of Highway Safety and Motor Vehicles for issuing or renewing a driver's license or identification card as required by this section.

3. Provide, upon request, any additional information necessary to confirm the identity of the sexual predator, including a set of fingerprints.

Enforcement] [pay the costs assessed by the Department of Highway Safety and Motor Vehicles for issuing or renewing a driver's license or identification card] [provide, upon request, [fingerprints] [additional information necessary, namely (specify the necessary information) ] to confirm the identity of the sexual predator].


The court now instructs you that, although a sexual offender must provide a post office box if [he] [she] has one, [his] [her] providing of a post office box without also providing a physical address is equivalent to not providing an address.

Read only if more than one item is charged in Element 3.b.iii.:


- Note: The additional note at the end of Element 3b of Sexual Offender Proposal #4 applies.

36

B. Sexual Predators : Proposal #6 (§ 775.21(6)(a)2.) [? Offender (none)] ? The judge instruction "Give 1a or 1b as applicable" is missing.

? Element 3:

• The entity with which the predator must register is "the department", i.e., the FDLE, not the Sheriff.

• The "any other information" language of the statute sounds odd in a jury instruction. The instruction needs to be more concrete, and there should be an option to exclude any items not relevant to the defendant and charge in question (this can be effected by using brackets). Suggested rewording:


(6)

(a) A sexual predator must register with the department by providing the following information to the department: . . .

2. Any other information determined necessary by the department, including criminal and corrections records; nonprivileged personnel and treatment records; and evidentiary genetic markers when available.

3. (Defendant) knowingly failed to provide the Florida Department of Law Enforcement with [his] [her] (name the single unprovided registration item charged, as worded in the statute)] [any one or more of the following items: [his] [her] (name the unprovided items charged, as phrased in the statute)].

Read only if more than one item is charged in Element 3:


37

B. Sexual Predators : Proposal #7 (§ 775.21(6)(g)) [? Offender #5] ? Heading: Seems awkwardly worded. Suggested rewording: "(Failure to Report Change of

Name or Address Within the State or Jurisdiction)".

? Element 3a:




(7)

(g)

1. Each time a sexual predator's driver's license or identification card is subject to renewal, and, without regard to the status of the predator's driver's license or identification card, within 48 hours after any change of the predator's residence or change in the predator's name by reason of marriage or other legal process, the predator shall report in person to a driver's license office and shall be subject to the requirements specified in paragraph (f). . . .

3. (Defendant)

a. knowingly failed to report in person to a driver's license office [when [his] [her] driver's license or identification card was subject to renewal] [within 48 hours after any change in [his] [her] permanent or temporary residence] [within 48 hours after any change in [his] [her] name by reason of [marriage] [(specify other legal process)]].

? Element 3b:




(6)

(g)

2. A sexual predator who vacates a permanent residence and fails to establish or maintain another permanent or temporary residence shall, within 48 hours after vacating the permanent

3. (Defendant)

b.

i. (Defendant) vacated [his] [her] permanent residence.

ii. (Defendant) subsequently failed to [establish] [maintain] another temporary or permanent residence.

iii. Give 3.b.iii.(1) or 3.b.iii.(2) as appropriate.

(Defendant)

(1) knowingly failed to report in person to

38

residence, report in person to the sheriff's office of the county in which he or she is located. The sexual predator shall specify the date upon which he or she intends to or did vacate such residence. The sexual predator must provide or update all of the registration information required under paragraph (a). The sexual predator must provide an address for the residence or other location that he or she is or will be occupying during the time in which he or she fails to establish or maintain a permanent or temporary residence.

an office of the Sheriff of (name of county) County in which [he] [she] is located within 48 hours after vacating [his] [her] permanent residence and failing to [establish] [maintain] another permanent or temporary residence.

(2) reported to the Sheriff of (name of county) County in which [he] [she] is located within 48 hours after vacating [his] [her] permanent residence, that he/she [established] [maintained] another temporary or permanent residence, but [(read only if one item is charged) knowingly failed to] [(read only if more than one item is charged; separate the last two items with "and") knowingly failed to undertake any one or more of the following]: [specify the date on which he/she [intends to vacate] [vacated] his/her permanent residence] [[provide] [update] his/her (name the unprovided items charged, as worded in the statute)] [[provide] [update] the address for the residence or other location that [he] [she] will be occupying during the time in which [he] [she] fails to [establish] [maintain] a permanent or temporary residence].

Read only if more than one item is charged in Element 3.b.iii.(2):


39

- Note: The additional note at the end of Element 3b of Sexual Offender Proposal #4 applies.

? Element 3c:

• Some of the comments for Element 3c of Sexual Offenders Proposal #5, especially the one regarding the timing of the predator's reporting, apply and are incorporated in the suggested rewording.



(6)

(g)

3. A sexual predator who remains at a permanent residence after reporting his or her intent to vacate such residence shall, within 48 hours after the date upon which the predator indicated he or she would or did vacate such residence, report in person to the sheriff's office to which he or she reported pursuant to subparagraph 2. for the purpose of reporting his or her address at such residence. . . .

3.

c.

i. (Defendant) reported to an office of the Sheriff of (name of county) County [his] [her] intent to vacate [his] [her] permanent residence.

ii. After having so reported, (defendant) instead remained in [his] [her] permanent residence.

iii. Within 48 hours after the date of [his] [her] originally intended departure from [his] [her] permanent residence, (defendant) knowingly failed to report to an office of the Sheriff of (name of county) County that he instead decided to remain in [his] [her] permanent residence.

40

B. Sexual Predators : Proposal #8 (§ 775.21(10)(a)) [? Offender (none)] • The only bureaucratic entity noted in the statute (§ 775.21(10)(a)) is "the department,"

meaning the FDLE. Is it proper for the instruction to also list the DOC and the Sheriff?

41

B. Sexual Predators : Proposal #9 (§ 775.21(6)(j)) [? Offender #7] ? Element 3:

• Some of the comments for Element 3 of Sexual Offenders Proposal #7, especially the one regarding the timing of the predator's reporting, apply and are incorporated in the suggested rewording.



(6)

(j) A sexual predator who indicates his or her intent to reside in another state or jurisdiction other than the State of Florida and later decides to remain in this state shall, within 48 hours after the date upon which the sexual predator indicated he or she would leave this state, report in person to the sheriff to which the sexual predator reported the intended change of residence, and report his or her intent to remain in this state. . . .

3. (Defendant) indicated to an office of the Sheriff of (name of county) County [his] [her] intent to leave this state on (date of intended departure) and reside in another state or jurisdiction.

4. (Defendant) later decided to remain in this state.

5. Within 48 hours after the date of [his] [her] originally intended departure from this state, (defendant) knowingly failed to report to an office of the Sheriff of (name of county) County that he instead decided to remain in this state.

42

B. Sexual Predators : Proposal #10 (§ 775.21(6)(i)) [? Offender #6] ? Element 3a:

• Some of the comments for Element 3 of Sexual Offenders Proposal #6 apply and are incorporated in the suggested rewording.



(6)

(i) A sexual predator who intends to establish residence in another state or jurisdiction other than the State of Florida shall report in person to the sheriff of the county of current residence within 48 hours before the date he or she intends to leave this state to establish residence in another state or jurisdiction. . . .

3. (Defendant)

a.

i. intended to leave this State to establish residence in another state or jurisdiction on (date); and

ii. knowingly failed to report in person to an office of the Sheriff in the county of [his] [her] current residence in Florida[??] within 48 hours before the date on which [he] [she] intended to leave this state to establish residence in another state or jurisdiction.

43

? Element 3b:

• Separate into elements.



(6)

(i) A sexual predator who intends to establish residence in another state or jurisdiction other than the State of Florida shall report in person to the sheriff of the county of current residence within 48 hours before the date he or she intends to leave this state to establish residence in another state or jurisdiction. The sexual predator must provide to the sheriff the address, municipality, county, and state of intended residence. . . .

3.

b.

i. reported to an office of the Sheriff of the county of his current residence [his] [her] intention to establish residence in another state or jurisdiction; and

ii. knowingly failed to provide [[his] [her] (name the single unprovided registration item charged, as worded in the statute)] [any one or more the following items: [his] [her] (name the unprovided registration items charged, as worded in the statute; separate the last two items with "and")].





44

B. Sexual Predators : Proposal #11 (§ 775.21(8)(a)) [? Offender #8] ? Cross-reference to definitional section is missing.

? The Instruction probably will probably have to include sub- instructions for all the requirements of § 775.21(8)(a)1., 2., 3., which are basically repetitions of several other instructions. I did not include these in my suggested rewording.

- § 775.21(8)(a)2. corresponds to Elements 3a and 3b of Proposal #4 and § 775.21(6)(a)1.b.

- § 775.21(8)(a)3. corresponds to Elements 3a and 3b of Proposal #3 and § 775.21(6)(a)1.a.

? Element 3a:




(8) (a) A sexual predator must report in

person each year during the month of the sexual predator's birthday . . . to the sheriff's office in the county in which he or she resides or is otherwise located to reregister. . . .

3. (Defendant)

a. knowingly failed to reregister by reporting in person during [his] [her] birthday month in (year) to an office of the Sheriff in the county in which [he] [she] resides or is otherwise located.

? Element 3b:




(8) (a) A sexual predator must report in

person each year . . . during the sixth month following the sexual predator's birth month to the sheriff's office in the county in which he or she resides or is otherwise located to reregister. . . .

3. (Defendant)

b. knowingly failed to reregister by reporting in person during the sixth month following [his] [her] (state year) birthday month to an office of the Sheriff in the county in which [he] [she] resides or is otherwise located.

45

? Element 3c: Suggested rewording:


(8) (a) . . . Reregistration shall include any

changes to the following information:

3. (Defendant)

c. knowingly failed to provide an office of the Sheriff of (name of county) County with a change to [[his] [her] (name the single unprovided registration item charged, as worded in the statute)] [any one or more the following items: [his] [her] (name the unprovided registration items charged, as worded in the statute; separate the last two items with "and")].



Read only if more than one item is charged in Element 3.c.:


46

B. Sexual Predators : Proposal #12 (§ 775.21(2), (4)) ? Definition of "Sexual predator"

• General comment: Elements 1–5 currently read as if they are conjunctive—i.e., as if all have to be satisfied in a given case. This is not the case. Elements 1–3, corresponding to § 775.21(4)(a), (b), go together as a unit and are self-contained. Element 5, corresponding to § 775.21(4)(d), is self-contained. I'm not sure that Element 4 should be included here at all (see below). In any case, either Elements 1–3 and 4(?) and 5 should be separated by "or" in the Instruction, or there should be a judge instruction at the beginning telling the judge to either read the appropriate items within Elements 1–3, or read Element 4(?), or read Element 5.

• Element 1, all prongs: The fact that the defendant was convicted of the crime needs to be made explicit, as reflected in the phrase "upon conviction" in the statute.

• Element 1, clause after prong 1h beginning "and, [¶] The offender has previously been [convicted of] [found to have committed] [pled nolo contendere regardless of adjudication to] [pled guilty regardless of adjudication to]": It is not clear that this "and . . ." clause and the subsequent prongs (1i–1l) are to be read only after prongs 1e–1h (which correspond to § 775.21(4)(a)1.b.). Based on the statute, prongs 1a–1d (which correspond to § 775.21(4)(a)1.a.) are sufficient in and of themselves without the "and . . . 1i–1l" instruction on previous convictions.

I would suggested renumbering Elements 1i–1l as 2a–2d (and moving up all subsequent element numbers); and including a judge instruction that one of 1i–1l (2a–2d) is to be read only if one of 1e–1h is read.

Suggested judge instruction (to appear just before line "1. Committed the current offense . . ."):

Read one of 1a, 1b, 1c, or 1d if the State is relying on an offense listed in § 775.21(4)(a)1.a., Florida Statutes; do not read 1i, 1j, 1k, or 1l or the instruction immediately preceding these items (concerning previous offenses). Read one of 1e, 1f, 1g, or 1h and one of 1i, 1j, 1k, or 1l if the State is relying on the current and previous offenses listed in § 775.21(4)(a)1.b., Florida Statutes.

• Element 1a:

? Fix brackets: "a [capital] [life] [first-degree] felony] violation . . ."

? The use of the preposition "for" strikes me as incorrect, e.g. : "a first-degree felony violation for the crime of kidnapping . . ." (In my suggested rewording, I use "violation of the statutory prohibition against (name of crime)". There may be a more colloquial or simpler way to say this, but I think it's at least grammatically correct.)

? "or any attempt thereof" is in the statutory definition, but this phrasing is not necessary in the jury instruction. All the judge needs to say is, e.g., "kidnapping" if it was the completed crime or "attempted kidnapping" if it was the attempt crime.

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"Sexual Predator" means a person who:

1. Committed the current offense on or after October 1, 1993 and was convicted of

a. a [capital] [life] [first-degree] felony violation of the statutory prohibition against (name of crime; specify "attempted" if applicable) where the victim was a minor and the defendant was not the victim's parent.

• Element 1b:

? Fix felony wording: ". . . a [capital] [life] [first-degree] felony violation . . ."

? Transpose words: ". . . an offense similar to . . ."

? Again, the "for" wording is awkward.

? No need for "or any attempt thereof".




b. (name of crime; specify "attempted" if applicable) in (name of other jurisdiction), an offense similar to a [capital] [life] [first-degree] felony violation of this state's statutory prohibition against (name of crime; specify "attempted" if applicable) where the victim was a minor and the defendant was not the victim's parent.

• Element 1c: Suggested rewording (based on all suggestions above, not repeated individually):



c. a [capital] [life] [first-degree] felony violation of the statutory prohibition against (name of crime; specify "attempted" if applicable).

• Element 1d: Suggested rewording (based on all suggestions above, not repeated individually):



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d. (name of crime; specify "attempted" if applicable) in (name of other jurisdiction), an offense similar to a [capital] [life] [first-degree] felony violation of this state's statutory prohibition against (name of crime; specify "attempted" if applicable).

• Element 1e: Suggested rewording (based on all suggestions above, not repeated individually):



e. a violation of the statutory prohibition against (name of crime; specify "attempted" if applicable) where the victim was a minor and the defendant was not the victim's parent.

• Element 1f: Suggested rewording (based on all suggestions above, not repeated individually):



f. (name of crime; specify "attempted" if applicable) in (name of other jurisdiction), an offense similar to a felony violation of this state's statutory prohibition against (name of crime; specify "attempted" if applicable) where the victim was a minor and the defendant was not the victim's parent.

• Element 1g: Suggested rewording (based on all suggestions above, not repeated individually):



g. a violation of the statutory prohibition against (name of crime; specify "attempted" if applicable).

• Element 1h: Suggested rewording (based on all suggestions above, not repeated individually):



h. (name of crime; specify "attempted" if applicable) in (name of other jurisdiction), an offense similar to a violation of this state's

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statutory prohibition against (name of crime; specify "attempted" if applicable).

• Preface to Elements 1i to 1l: Brackets need adjusting:

The offender has previously [been convicted of] [been found to have committed] [pled nolo contendere regardless of adjudication to] [pled guilty regardless of adjudication to]

• Element 1i: Suggested rewording (based on all suggestions above, not repeated individually):


i. a violation of the statutory prohibition against (name of crime; specify "attempted" if applicable) where the victim is a minor and the defendant is not the victims parent.

• Element 1j: Suggested rewording (based on all suggestions above, not repeated individually):


j. (name of crime; specify "attempted" if applicable) in (name of other jurisdiction), an offense similar to a violation of this state's statutory prohibition against (name of crime; specify "attempted" if applicable) where the victim was a minor and the defendant was not the victim's parent.

• Element 1k: Suggested rewording (based on all suggestions above, not repeated individually):


k. a felony violation of the statutory prohibition against (name of crime; specify "attempted" if applicable).

• Element 1l: Suggested rewording (based on all suggestions above, not repeated individually):


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l. (name of crime; specify "attempted" if applicable) in (name of other jurisdiction), an offense similar to a violation of this state's statutory prohibition against (name of crime; specify "attempted" if applicable).

• Element 2: The two components of this element, separated by "and", should be separately numbered elements.

• Element 2, first half:

? The Proposed Instruction does not reflect the meaning of the statute. As indicated by the phrase "necessary for the operation of this paragraph, the "pardon" in the statute refers specifically to a pardon for: (A) the one current offense leading to the predator designation per § 775.21(4)(a)1.a. or (B) either of the two offenses (one prior, one current) leading to the predator designation per § 775.21(4)(a)1.b. The "pardon" in the Proposed Instruction is for "any felony designated . . . as a sexual predator offense," which could refe r to an offense other than the specific predicate offenses.

The instruction needs to be divided into two prongs, one for the predicate offenses corresponding to § 775.21(4)(a)1.a. (and Proposed Instructions 1a–1d) and one corresponding to § 775.21(4)(a)1.b. (and Proposed Instructions 1e–1h and 1i–1l).


Read 2a if 1a, 1b, 1c, or 1d is read. Read 2b if one of 1e, 1f, 1g, or 1h is read and one of 1i, 1j, 1k, or 1l is read. If 2b is read, read both i and ii.

2.

a. Has not received a pardon for the offense just described.

b.

i. Has not received a pardon for the current offense just described; and

ii. Has not received a pardon for the previous offense just described.

• Element 2, second half: The same corrections as for the first half are needed. (Also, "postconviction" is one word.) Suggested rewording:

Read 2a3a if 1a, 1b, 1c, or 1d is read. Read 2b3b if one of 1e, 1f, 1g, or 1h is read and one of 1i, 1j, 1k, or 1l is read. If 2b3b is read, read both i and ii.

23.

a. Has not had the conviction for the offense just described set aside in any postconviction proceeding.

b.

i. Has not had the conviction for the current offense just described set aside in a postconviction proceeding; and

ii. Has not had any conviction for the previous offense just described set aside in a postconviction proceeding.

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• Element 3:

? This needs a judge instruction to the effect that the element should be read only if one of 1e–1h and one of 1i–1l are read. It would not apply if one of 1a–1d is read.

? Change "prior" to "previous" for consistency with the wording of the other elements.

• Element 4: I'm not sure what to make of this instruction and the statute upon which it is based, § 775.21(4)(c). I think the statute is merely setting forth the procedure that the State and court must follow in properly designating a person as a sexual predator when the court did not do so in the first instance or when a bureaucratic entity did do so on its own. Presumably, in making this designation (or redesignation), the court must use the criteria in § 775.21(4)(a), (b). (I guess this is what "the criteria for designation as a sexual predator" in § 775.21(4)(c) refers to.) If so, then § 775.21(4)(c) does not represent a separate criterion defining "sexual predator"; as such, Element 4 should be deleted from the Proposed Instruction.

• Element 5: (no comments).

? Definition of "conviction": "conviction for" (not "of"), as in the statute?

? Definition of "temporary residence": add "or" as follows: ". . . permanent address; or, for a person . . ."

? Definition of "Knowingly"

• Should the citation for this definition be included? (State v. Georgetti, 868 So. 2d 512 (Fla. 2001).)

• This definition comes across as too abstract. I guess a juror could figure out that the first prong, actual knowledge, refers to the defendant's actual knowledge. It seems less likely that a juror will figure out the second prong, that it is the State that must adduce proof of the probability of such knowledge. (I assume that this is what the second prong means. If it means something else, then please clarify.) Why not spell it all out? Suggested rewording:

"Knowingly" means either that (defendant) had actual knowledge of [his] [her] duty to register or that the State has demonstrated proof of the probability that (defendant) had such knowledge.

? Definition of "Register as a sexual predator"

• Separate main items with semicolons.

• When would this definition ever be given? In Proposal #2, for example, you spell out the necessary information in Element 3 anyway. Can this definition therefore be deleted?

• Assuming that this definition is deleted, the caveat "A post office box shall not be provided in lieu of a physical residential address" would no longer appear anywhere. I would suggest including it as a separate sub-instruction only if failure to register an address is charged.

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? Other definitions

• Shouldn't the definition if "Institution of higher education" be included? § 775.21(2)(h).

• Does the definition of "Change in enrollment or employment status" need to be included? § 775.21(2)(i).

Documents

APPENDIX C Jay Thomas - Florida State Supreme · PDF fileAPPENDIX C Jay Thomas. 2 November 27, ... The wording in Part B is more concise ... Verdict Form which item or items that you