Florida Assault, Battery, and Stalking Jury Instructions

Florida Assault, Battery, and Stalking Jury Instructions: The Trial Blueprint

If you are facing a violent crime, threat, or harassment charge in Florida, an arrest is not an automatic conviction. At trial, a jury evaluates your case using a precise set of legal definitions known as the Florida Standard Jury Instructions. The prosecutor must prove every single part of these instructions beyond a reasonable doubt. If they fail to prove even one element, the jury must return a verdict of not guilty.

As a Florida Bar Board-Certified Criminal Trial Specialist and former prosecutor, W.F. “Casey” Ebsary Jr. systematically audits these instructions to uncover missing evidence, expose police procedural errors, and build aggressive trial defenses.

What the State Must Prove: Element Breakdown

Assault and Threats

• Simple Assault (Instruction 8.1): To convict you, the state must prove you intentionally threatened someone by word or action, had the immediate physical ability to carry out that threat, and made the victim reasonably fear that violence was about to happen right then.
• Aggravated Assault (Instruction 8.2): This felony charge requires the state to prove all elements of a basic assault, plus proof that you either used a deadly weapon or committed the assault with the intent to pull off another felony.
• Written or Electronic Threats (Instruction 8.22): This applies to text messages, social media posts, or emails. The state must prove you wrote and sent a message threatening to kill, do bodily injury, or execute an act of mass violence. The prosecutor does not have to prove you actually intended to carry it out.

Battery and Physical Contact

• Simple Battery (Instruction 8.3): The state must prove you actually and intentionally touched or struck someone against their will, or intentionally caused them physical harm.
• Felony Battery (Instruction 8.5): This applies if the state proves you intentionally touched or struck someone against their will, and that contact directly resulted in great bodily harm, permanent disability, or permanent disfigurement.
• Aggravated Battery (Instruction 8.4): This severe felony requires proof that you committed a battery and intentionally caused great bodily harm, or that you introduced a deadly weapon into the fight.
• Domestic Battery by Strangulation (Instruction 8.5a): The prosecution must prove you intentionally blocked the normal breathing or blood flow of a family member, household member, or romantic partner by applying pressure to their neck or face.

Stalking and Harassment

• Simple Stalking (Instruction 8.6): The state must prove a repeated pattern of behavior. They must establish that you willfully, maliciously, and repeatedly followed, harassed, or cyberstalked the victim, causing them severe emotional distress.
• Aggravated Stalking (Instruction 8.7a): This felony applies if you engage in standard stalking behaviors and add a credible threat that places the victim in reasonable fear of death or serious injury.

Quick Reference: Injunctions and Privacy Violations

When a court order or digital technology is involved, the jury instructions focus on strict compliance thresholds:

• Violation of a Domestic Violence Injunction (Instruction 8.18): Requires proof that a valid protective order was active and you knowingly violated its terms (such as contact or proximity limits).
• Violation of Pretrial Release Conditions (Instruction 8.25): If you are released after a domestic violence arrest and ignore a court-ordered “No Contact” directive, the state can file this separate criminal charge.
• Non-Consensual Electronic Tracking (Instruction 8.34): Requires proof that you installed a GPS device, an Apple AirTag, or a tracking app to monitor someone’s location or property without their explicit permission.

How We Challenge the Prosecution’s Blueprint

Because the jury must follow these instructions exactly, our defense strategy focuses on breaking the state’s legal chain. Common defense strategies in the Tampa Bay area include:

• Disputing Criminal Intent: Proving the physical contact was completely accidental, incidental, or misconstrued.
• Challenging “Well-Founded Fear”: Demonstrating that an alleged threat was hollow, vague, or wouldn’t cause a reasonable person to fear immediate violence.
• Exposing Identity Flaws: In digital threat or cyberstalking cases, forcing the state to prove that you were actually the individual typing and sending the messages from that device.
• Lawful Self-Defense: Presenting evidence that your actions were a legally justified response to protect yourself or another person under Florida law.

Put a Board-Certified Trial Expert in Your Corner

Do not rely on online guesswork when your freedom and clean record are on the line. Get a clear assessment of your case based on the exact rules used in Florida courts.

• Examine Our Trial History: Review W.F. “Casey” Ebsary Jr.’s qualifications at the CentralLaw Professional Bio Page.
• Schedule Your Case Audit: Submit your arrest or notification details securely via the CentralLaw Contact Portal.
• Call Downtown Tampa Directly: Contact our office at 813-222-2220 to map out your defense strategy.

FAQ for Florida Assault, Battery, and Stalking Jury Instructions

Full Text of Florida Assault, Battery, and Stalking Jury Instructions

8.1 ASSAULT

§ 784.011, Fla. Stat.

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

1. (Defendant) intentionally and unlawfully threatened, either by word or act, to do violence to (victim).

2. At the time, (defendant) appeared to have the ability to carry out the threat.

3. The act of (defendant) created in the mind of (victim) a well-founded fear that the violence was about to take place.

Lesser Included Offenses

ASSAULT — 784.011

Comment

This instruction was adopted in 1981 and amended in 1997.

8.2 AGGRAVATED ASSAULT

§ 784.021, Fla. Stat.

To prove the crime of Aggravated Assault, the State must prove the following four elements beyond a reasonable doubt. The first three elements define Assault.

1. (Defendant) intentionally and unlawfully threatened, either by word or act, to do violence to (victim).

2. At the time, (defendant) appeared to have the ability to carry out the threat.

3. The act of (defendant) created in the mind of (victim) a well-founded fear that the violence was about to take place.

Give 4a or 4b or both as applicable. If 4b is alleged, give the elements of the felony charged.

4. a. The assault was made with a deadly weapon.

b. The assault was made with a fully-formed, conscious intent to commit (felony charged) upon (victim).

Give if applicable. McClain v. State, 383 So. 2d 1146 (Fla. 4th DCA 1980); Smithson v. State, 689 So. 2d 1226 (Fla. 5th DCA 1997); Gilbert v. State, 347 So. 2d 1087 (Fla. 3d DCA 1977).

If the circumstances were such as to ordinarily induce a well-founded fear in the mind of a reasonable person, then (victim) may be found to have been in fear, and actual fear on the part of (victim) need not be shown. 

Give if 4a alleged.

A “deadly weapon” is any object that will likely cause death or great bodily harm if used or threatened to be used in the ordinary and usual manner contemplated by its design and construction. 

Give if applicable. 

An object not designed to inflict bodily harm may nonetheless be a “deadly weapon” if it was used or threatened to be used in a manner likely to cause death or great bodily harm.

“Great bodily harm” means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises.

Give if 4a alleged.

It is not necessary for the State to prove that the defendant had an intent to kill.

Lesser Included Offenses

AGGRAVATED ASSAULT — 784.021

Comments

*It is not clear whether a charging document that tracks the statute for Aggravated Assault with a Deadly Weapon necessarily charges Improper Exhibition. Contrast Christ v. State, 104 So. 3d 1262 (Fla. 2d DCA 2013) and Michaud v. State, 47 So. 3d 374 (Fla. 5th DCA 2010) with Mack v. State, 305 So. 2d 264 (Fla. 3d DCA 1974).

Num-chucks, which were originally designed as a farm tool, can be a deadly weapon. R.V. v. State, 497 So. 2d 912 (Fla. 5th DCA 1986). Jurors could find that a 7-inch straight-edged razor might be a dangerous weapon. R.R. v. State, 826 So. 2d 465 (Fla. 5th DCA 2002). In trials involving these types of objects, the judge should consider a special instruction informing jurors that an object can be a deadly weapon if its sole modern use is to cause great bodily harm or death. A special instruction may also be necessary in cases where the deadly weapon was an animal or a substance or something that is not commonly referred to as an “object.”

This instruction was approved in 1981 and amended in 2013 [131 So. 3d 755], 2016 [195 So. 3d 356], and on April 3, 2020.

8.3 BATTERY

§ 784.03, Fla. Stat.

To prove the crime of Battery, the State must prove the following element beyond a reasonable doubt:

Give 1. or 2. or both depending on the charging document.

1. (Defendant) actually and intentionally touched or struck (victim) against [his] [her] will.

[or]

2. (Defendant) intentionally caused bodily harm to (victim).

Give only if applicable. Fey v. State, 125 So. 3d 828 (Fla. 4th DCA 2013).

An intentional touching or striking includes situations where a defendant knows that a touch or strike is substantially certain to result from his or her act.

Give only if applicable. Clark v. State, 783 So. 2d 967 (Fla. 2001). 

A Battery may be found as a result of the intentional touching or intentional striking of something other than the actual body of the person. However, the object that is touched or struck must have such an intimate connection with the person that it is to be regarded as a part or as an extension of the person. [For example, in cases where a person intentionally drove into another occupied vehicle, it is for you to determine whether the vehicle that was struck should be considered as a part or as an extension of the person inside that vehicle. This determination may include consideration about whether the person was “touched” through the force of impact by being jostled or otherwise impacted through the transfer of energy from the collision.]   

Give in a bifurcated proceeding if § 784.03(2), Fla. Stat. was charged and if the jury found the defendant guilty of Battery.

Now that you have found the defendant guilty of Battery, you must further determine whether the State proved beyond a reasonable doubt that the defendant was previously convicted of [Battery] [Aggravated Battery] [Felony Battery]. “Convicted” means a determination of guilt that was the result of a plea or a trial, regardless of whether adjudication was withheld or a plea of nolo contendere was entered.

Lesser Included Offense

BATTERY — 784.03

Comment

This instruction was approved in 1981 and amended in 2018.

8.4 AGGRAVATED BATTERY

§784.045(1)(a), Fla. Stat.

To prove the crime of Aggravated Battery, the State must prove the following two elements beyond a reasonable doubt. The first element is a definition of Battery.

Give 1a or 1b or both as applicable.

1. (Defendant)

a. actually and intentionally touched or struck (victim) against [his] [her] will.

b. intentionally caused bodily harm to (victim).

Give 2a or 2b or both as applicable.

2. (Defendant), in committing the Battery,

a. intentionally or knowingly caused

[great bodily harm to (victim)]. 

[permanent disability to (victim)].

[permanent disfigurement to (victim)].

b. used a deadly weapon.

Give only if 2b alleged.

A “deadly weapon” is any object that will likely cause death or great bodily harm if used or threatened to be used in the ordinary and usual manner contemplated by its design and construction. 

Give if applicable. 

An object not designed to inflict bodily harm may nonetheless be a “deadly weapon” if it was used or threatened to be used in a manner likely to cause death or great bodily harm.

Give if applicable. 

“Great bodily harm” means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises.

Give only if applicable. Fey v. State, 125 So. 3d 828 (Fla. 4th DCA 2013).

An intentional touching or striking includes situations where a defendant knows that a touch or strike is substantially certain to result from his or her act.

Give only if applicable. Clark v. State, 783 So. 2d 967 (Fla. 2001). 

A battery may be found as a result of the intentional touching or intentional striking of something other than the actual body of the person. However, the object that is touched or struck must have such an intimate connection with the person that it is to be regarded as a part or as an extension of the person. [For example, in cases where a person intentionally drove into another occupied vehicle, it is for you to determine whether the vehicle that was struck should be considered as a part or as an extension of the person inside that vehicle. This determination may include consideration about whether the person was “touched” through the force of impact by being jostled or otherwise impacted through the transfer of energy from the collision.]

Lesser Included Offenses

AGGRAVATED BATTERY — 784.045(1)(a)

Comments

*The lesser included offense of Felony Battery is applicable only if element 2a is charged.

Florida law on alternative conduct statutes is unsettled. For example, in a DUI case, it is permissible for some jurors to conclude the State proved only driving while impaired, and other jurors to conclude the State proved only driving with an unlawful breath alcohol level. Euceda v. State, 711 So. 2d 122 (Fla. 3d DCA 1998). However, according to the Second District, it is improper for some jurors to conclude the State proved only that the defendant intentionally caused great bodily harm, and other jurors to conclude the State proved only that the defendant used a deadly weapon. Miller v. State, 123 So. 3d 595 (Fla. 2d DCA 2013). Unless the case law changes, in Aggravated Battery cases where the State has charged both alternatives, trial judges must give a special instruction that informs jurors they must be unanimous on each alternative theory.

Num-chucks, which were originally designed as a farm tool, can be a deadly weapon. R.V. v. State, 497 So. 2d 912 (Fla. 5th DCA 1986). Jurors could find that a 7-inch straight-edged razor might be a dangerous weapon. R.R. v. State, 826 So. 2d 465 (Fla. 5th DCA 2002). In trials involving these types of objects, the judge should consider a special instruction informing jurors that an object can be a deadly weapon if its sole modern use is to cause great bodily harm or death. A special instruction may also be necessary in cases where the deadly weapon was an animal or a substance or something that is not commonly referred to as an “object.”

This instruction was approved in 1981 and amended in 1989 [543 So.2d 1205], 2007 [962 So. 2d 310], and on April 3, 2020.

8.4(a) AGGRAVATED BATTERY (PREGNANT VICTIM)

§ 784.045(1)(b), Fla. Stat.

To prove the crime of Aggravated Battery, the State must prove the following three elements beyond a reasonable doubt. The first element is a definition of Battery.

Bracketed language depends on the charging document.

1. (Defendant) [actually and intentionally touched or struck (victim) against her will] [intentionally caused bodily harm to (victim)].

2. (Victim) was pregnant at the time.

3. (Defendant) in committing the battery knew or should have known that (victim) was pregnant.

Give only if applicable. Fey v. State, 125 So. 3d 828 (Fla. 4th DCA 2013).

An intentional touching or striking includes situations where a defendant knows that a touch or strike is substantially certain to result from his or her act.

Give only if applicable. Clark v. State, 783 So. 2d 967 (Fla. 2001). 

A battery may be found as a result of the intentional touching or intentional striking of something other than the actual body of the person. However, the object that is touched or struck must have such an intimate connection with the person that it is to be regarded as a part or as an extension of the person. [For example, in cases where a person intentionally drove into another occupied vehicle, it is for you to determine whether the vehicle that was struck should be considered as a part or as an extension of the person inside that vehicle. This determination may include consideration about whether the person was “touched” through the force of impact by being jostled or otherwise impacted through the transfer of energy from the collision.]

Lesser Included Offenses

AGGRAVATED BATTERY (PREGNANT VICTIM) – 784.045(1)(b)

Comment

This instruction was approved in 2007 [962 So. 2d 310] and amended in 2018.

8.5 FELONY BATTERY

§ 784.041(1), Fla. Stat.

To prove the crime of Felony Battery, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) actually and intentionally touched or struck (victim) against [his] [her] will; and

2. (Defendant) caused (victim) great bodily harm, permanent disability, or permanent disfigurement.

Give only if applicable. Great bodily harm. Wheeler v. State, 203 So. 3d 1007 (Fla. 4th DCA 2016).

“Great bodily harm” means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises. 

Give only if applicable. Fey v. State, 125 So. 3d 828 (Fla. 4th DCA 2013).

An intentional touching or striking includes situations where a defendant knows that a touch or strike is substantially certain to result from his or her act.

Give only if applicable. Clark v. State, 783 So. 2d 967 (Fla. 2001). 

A battery may be found as a result of the intentional touching or intentional striking of something other than the actual body of the person. However, the object that is touched or struck must have such an intimate connection with the person that it is to be regarded as a part or as an extension of the person. [For example, in cases where a person intentionally drove into another occupied vehicle, it is for you to determine whether the vehicle that was struck should be considered as a part or as an extension of the person inside that vehicle. This determination may include consideration about whether the person was “touched” through the force of impact by being jostled or otherwise impacted through the transfer of energy from the collision.]

Lesser Included Offenses

FELONY BATTERY — 784.041(1)

Comment

This instruction was adopted in 2000 [765 So. 2d 692] and amended in 2018.

8.5(a) DOMESTIC BATTERY BY STRANGULATION

§ 784.041(2)(a), Fla. Stat.

To prove the crime of Domestic Battery by Strangulation, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) knowingly and intentionally impeded the normal [breathing] [or] [circulation of the blood] of (victim), against [his] [her] will, [by applying pressure on the throat or neck of (victim)] [or] [by blocking the nose or mouth of (victim)].

2. In so doing, (Defendant) [created a risk of great bodily harm] [or] [caused great bodily harm] to (victim).

3. (Defendant) was [a family or household member of (victim)] [or] [in a dating relationship with (victim)].

Give as applicable.

“Family or household member” means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.

“Dating relationship” means a continuing and significant relationship of a romantic or intimate nature.

Wheeler v. State, 203 So. 3d 1007 (Fla. 4th DCA 2016).

“Great bodily harm” means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises. 

Lesser Included Offenses

DOMESTIC BATTERY BY STRANGULATION – 784.041(2)(a)

Comment

This instruction was adopted in 2008 [994 So. 2d 1038] and amended in 2019 [267 So. 3d 980], and on March 8, 2024.

8.5(b) BATTERY BY STRANGULATION

§ 784.031, Fla. Stat.

To prove the crime of Battery by Strangulation, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) knowingly and intentionally impeded the normal [breathing] [or] [circulation of the blood] of (victim), against [his] [her] will, [by applying pressure on the throat or neck of (victim)] [or] [by blocking the nose or mouth of (victim)].

2. In so doing, (Defendant) [created a risk of great bodily harm] [or] [caused great bodily harm] to (victim)].

Wheeler v. State, 203 So. 3d 1007 (Fla. 4th DCA 2016).

“Great bodily harm” means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises. 

Lesser Included Offenses

BATTERY BY STRANGULATION – 784.031

Comment

This instruction was adopted on March 8, 2024.

8.6 STALKING

§ 784.048(2), Fla. Stat.

To prove the crime of Stalking, the State must prove the following element beyond a reasonable doubt:

(Defendant) willfully, maliciously, and repeatedly [followed] [harassed] [or] [cyberstalked] (victim).

Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987). 

“Willfully” means knowingly, intentionally, and purposely.

Seese v. State, 955 So. 2d 1145 (Fla. 4th DCA 2007). 

“Maliciously” means wrongfully, intentionally, and without lawful justification or excuse.

Give if applicable. 

§ 784.048, Fla. Stat.; Pallas v. State, 636 So. 2d 1358 (Fla. 3d DCA 1994).

“Harass” means to engage in a course of conduct directed at (victim), that 

1. served no legitimate purpose;

2. would cause substantial emotional distress to a reasonable person; and 

3. did cause substantial emotional distress to (victim).

“Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose. 

“Cyberstalk” means [to engage in a course of conduct to communicate, or to cause to be communicated, directly or indirectly, words, images, or language by or through the use of electronic mail or electronic communication, directed at or pertaining to a specific person,] [or] [to access or attempt to access the online accounts or Internet-connected home electronic systems of another person without that person’s permission,] serving no legitimate purpose, causing substantial emotional distress to that person, and that would cause substantial emotional distress to a reasonable person. 

Lesser Included Offense

STALKING — 784.048(2)

Comments

A special instruction will be necessary if the defendant claims that his or her behavior was protected by the First Amendment.

This instruction was approved in 1995 [657 So. 2d 1152] and amended in 2007 [953 So. 2d 495], 2013 [131 So. 3d 755], 2020 [288 So. 3d 530], and on December 15, 2021, and on March 8, 2024.

8.7(a) AGGRAVATED STALKING

§ 784.048(3), Fla. Stat.

To prove the crime of Aggravated Stalking, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) willfully, maliciously, and repeatedly [followed] [harassed] [or] [cyberstalked] (victim); and

2. (Defendant) made a credible threat to (victim). 

Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987). 

“Willfully” means knowingly, intentionally, and purposely.

Seese v. State, 955 So. 2d 1145 (Fla. 4th DCA 2007). 

“Maliciously” means wrongfully, intentionally, and without lawful justification or excuse.

Give if applicable.

§ 784.048, Fla. Stat.; Pallas v. State, 636 So. 2d 1358 (Fla. 3d DCA 1994). 

“Harass” means to engage in a course of conduct directed at (victim), that 

1. served no legitimate purpose;

2. would cause substantial emotional distress to a reasonable person; and 

3. did cause substantial emotional distress to (victim).

“Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose. 

“Cyberstalk” means [to engage in a course of conduct to communicate, or to cause to be communicated, directly or indirectly, words, images, or language by or through the use of electronic mail or electronic communication, directed at or pertaining to a specific person,] [or] [to access or attempt to access the online accounts or Internet-connected home electronic systems of another person without that person’s permission,] serving no legitimate purpose, causing substantial emotional distress to that person, and that would cause substantial emotional distress to a reasonable person.

Give in all cases. § 784.048(1)(c), Fla. Stat.

“Credible threat” means a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the apparent ability to carry out the threat to cause such harm. 

It is not necessary for the State to prove that the person making the threat had the actual intent to carry out the threat; however, the State is required to prove beyond a reasonable doubt that the defendant was aware that a reasonable person who heard or saw the threat could regard it as a serious expression of an intent to commit an act of violence.

Give if applicable.

The present incarceration of the person making the threat is not a bar to prosecution.

Lesser Included Offenses

AGGRAVATED STALKING — 784.048(3)

Comments

A special instruction will be necessary if the defendant claims that his or her behavior was protected by the First Amendment.

This instruction was approved in 1995 [657 So. 2d 1152] and amended in 2007 [953 So. 2d 495], 2013 [131 So. 3d 755], 2020 [288 So. 3d 530], on December 15, 2021, and on March 8, 2024. 

8.7(b) AGGRAVATED STALKING (INJUNCTION ENTERED)

§ 784.048(4), Fla. Stat.

To prove the crime of Aggravated Stalking, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) knowingly, willfully, maliciously, and repeatedly [followed] [harassed] [or] [cyberstalked] (victim).

Give 2a or 2b or both as applicable.

2. At the time of the [following] [harassing] [or] [cyberstalking], 

a. an injunction for protection against [repeat] [sexual] [dating] [domestic] violence had been entered against (defendant) for the benefit of (victim). 

b. a court had imposed a prohibition of conduct on (defendant) toward (victim) or (victim’s property).

3. (Defendant) knew that the [injunction] [court-imposed prohibition of conduct] had been entered against [him] [her].

Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987). 

“Willfully” means intentionally and purposely.

Seese v. State, 955 So. 2d 1145 (Fla. 4th DCA 2007). 

“Maliciously” means wrongfully, intentionally, and without lawful justification or excuse.

Give if applicable.

§ 784.048, Fla. Stat.; Pallas v. State, 636 So. 2d 1358 (Fla. 3d DCA 1994).

“Harass” means to engage in a course of conduct directed at (victim), that 

1. served no legitimate purpose;

2. would cause substantial emotional distress to a reasonable person; and 

3. did cause substantial emotional distress to (victim).

“Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose.

“Cyberstalk” means [to engage in a course of conduct to communicate, or to cause to be communicated, directly or indirectly, words, images, or language by or through the use of electronic mail or electronic communication, directed at or pertaining to a specific person,] [or] [to access or attempt to access the online accounts or Internet-connected home electronic systems of another person without that person’s permission,] serving no legitimate purpose, causing substantial emotional distress to that person, and that would cause substantial emotional distress to a reasonable person. 

Lesser Included Offenses

AGGRAVATED STALKING (Injunction Entered) — 784.048(4)

Comments

A special instruction will be necessary if the defendant claims that his or her behavior was protected by the First Amendment.

This instruction was adopted in 1995 [657 So. 2d 1152] and was amended in 2007 [953 So. 2d 495], 2008 [995 So. 2d 476], 2013 [131 So. 3d 755], 2020 [288 So. 3d 530], on December 15, 2021, and on March 8, 2024.

8.7(c) AGGRAVATED STALKING (VICTIM UNDER 16 YEARS OF AGE)

§ 784.048(5), Fla. Stat.

To prove the crime of Aggravated Stalking, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) willfully, maliciously, and repeatedly [followed] [harassed] [or] [cyberstalked] (victim); and,

2. At the time of (defendant’s) actions, (victim) was under 16 years of age.

Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987). 

“Willfully” means knowingly, intentionally, and purposely.

Seese v. State, 955 So. 2d 1145 (Fla. 4th DCA 2007). 

“Maliciously” means wrongfully, intentionally, and without lawful justification or excuse.

Give if applicable.

§ 784.048, Fla. Stat., Pallas v. State, 636 So. 2d 1358 (Fla. 3d DCA 1984).

“Harass” means to engage in a course of conduct directed at (victim), that 

1. served no legitimate purpose;

2. would cause substantial emotional distress to a reasonable person; and 

3. did cause substantial emotional distress to (victim).

“Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose.

“Cyberstalk” means [to engage in a course of conduct to communicate, or to cause to be communicated, directly or indirectly, words, images, or language by or through the use of electronic mail or electronic communication, directed at or pertaining to a specific person,] [or] [to access or attempt to access the online accounts or Internet-connected home electronic systems of another person without that person’s permission,] serving no legitimate purpose, causing substantial emotional distress to that person, and that would cause substantial emotional distress to a reasonable person.

Lesser Included Offenses

AGGRAVATED STALKING (Victim under 16 years of age) — 784.048(5)

Comments

A special instruction will be necessary if the defendant claims that his or her behavior was protected by the First Amendment.

This instruction was adopted in 2000 [765 So. 2d 692] and amended in 2007 [953 So. 2d 495], 2013 [131 So. 3d 755], 2020 [288 So. 3d 530], on December 15, 2021, and on March 8, 2024.

8.7(d) AGGRAVATED STALKING

(DEFENDANT PREVIOUSLY SENTENCED FOR SEX OFFENSE AND WAS PROHIBITED FROM CONTACTING VICTIM)

§ 784.048(7), Fla. Stat.

To prove the crime of Aggravated Stalking, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) was sentenced for [sexual battery] [violating Fla. Stat. 800.04] [violating Fla. Stat. 847.0135(5)]. 

2. As part of that sentencing, (defendant) was ordered to have no contact with (victim).

3. After the sentencing, (defendant) willfully, maliciously, and repeatedly [followed] [harassed] [or] [cyberstalked] (victim).

Patterson v. State, 512 So. 2d 1109 (Fla. 1st DCA 1987). 

“Willfully” means knowingly, intentionally, and purposely.

Seese v. State, 955 So. 2d 1145 (Fla. 4th DCA 2007). 

“Maliciously” means wrongfully, intentionally, and without lawful justification or excuse.

Give if appliable.

§ 784.048, Fla. Stat.; Pallas v. State, 636 So. 2d 1358 (Fla. 3d DCA 1984).

“Harass” means to engage in a course of conduct directed at (victim), that 

1. served no legitimate purpose;

2. would cause substantial emotional distress to a reasonable person; and 

3. did cause substantial emotional distress to (victim).  

“Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose. 

“Cyberstalk” means [to engage in a course of conduct to communicate, or to cause to be communicated, directly or indirectly, words, images, or language by or through the use of electronic mail or electronic communication, directed at or pertaining to a specific person,] [or] [to access or attempt to access the online accounts or Internet-connected home electronic systems of another person without that person’s permission,] serving no legitimate purpose, causing substantial emotional distress to that person, and that would cause substantial emotional distress to a reasonable person.

Lesser Included Offenses

AGGRAVATED STALKING (Defendant previously sentenced for sex offense and was prohibited from contacting victim) — 784.048(7)

Comments

This instruction was adopted in 2013 [131 So. 3d 755] and amended in 2020 [288 So. 3d 530], on December 15, 2021, and on March 8, 2024.

8.8 [ASSAULT] [AGGRAVATED ASSAULT] [BATTERY] [AGGRAVATED BATTERY] ON A CODE INSPECTOR

§ 784.083, Fla. Stat.

To prove the crime of [Assault] [Aggravated Assault] [Battery] [Aggravated Battery] on a Code Inspector, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) committed a[n] [Assault] [Aggravated Assault] [Battery] [Aggravated Battery] against (victim).

2. At the time, (victim) was a code inspector engaged in the lawful performance of [his] [her] duties.

3. At the time, (defendant) knew or had reason to know (victim) was a code inspector. 

A[n] [Assault] [Aggravated Assault] [Battery] [Aggravated Battery] is legally defined as (insert applicable portions of instructions 8.1, 8.2, 8.3, 8.4, and/or 8.4(a)).

§ 162.04, Fla. Stat.

“Code Inspector” means any authorized agent or employee of the county or municipality whose duty it is to assure code compliance.

Lesser Included Offense

See relevant instructions on crimes in element 1 for appropriate lesser included offenses.

Comment

This instruction was adopted on May 21, 2024.

8.9 CULPABLE NEGLIGENCE

§ 784.05, Fla. Stat.

To prove the crime of Culpable Negligence, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant)

Give 1a or 1b as applicable.

a. exposed (victim) to personal injury.

a. inflicted actual personal injury on (victim).

2. [He] [She] did so through culpable negligence.

Give only if 1a is read to the jury.

Actual injury is not required.

I will now define “culpable negligence” for you. Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care for others. For negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing a grossly careless disregard for the safety and welfare of the public. The negligent act or omission must have been committed with an utter disregard for the safety of another. 

Lesser Included Offense

CULPABLE NEGLIGENCE — 784.05(2)

Comment

This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985], and on June 12, 2026.

8.10 ASSAULT ON A[N] [LAW ENFORCEMENT OFFICER]
[INSERT VICTIM’S JOB] 

§ 784.07(2)(a), Fla. Stat.

To prove the crime of Assault on a[n] [Law Enforcement Officer] [Firefighter] [Emergency Medical Care Provider] [Hospital Personnel] [Traffic Accident Investigation Officer] [Traffic Infraction Enforcement Officer] [Parking Enforcement Specialist] [Security Officer Employed by the Board of Trustees of a Community College] [Law Enforcement Explorer] [Non-sworn Law Enforcement Agency Employee Certified as an Agency Inspector] [Blood Alcohol Analyst] [Breath Test Operator] [Railroad Special Officer] [Licensed Security Officer] [Utility Worker], the State must prove the following six elements beyond a reasonable doubt. The first three elements define the crime of Assault.

1. (Defendant) intentionally and unlawfully threatened, either by word or act, to do violence to (victim).

2. At the time, (defendant) appeared to have the ability to carry out the threat.

3. The act of (defendant) created in the mind of (victim) a well-founded fear that the violence was about to take place.

4. (Victim) was at the time a[n] [law enforcement officer] [firefighter] [emergency medical care provider] [hospital personnel] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college] [law enforcement explorer] [non-sworn law enforcement agency employee who was certified as an agency inspector] [blood alcohol analyst] [breath test operator while such employee was in uniform and engaged in processing, testing, evaluating, analyzing, or transporting a person who was detained or under arrest for DUI] [railroad special officer] [licensed security officer who wore a uniform that bore at least one patch or emblem that was visible at all times that clearly identified the employing agency and that clearly identified the person as a licensed security officer] [utility worker engaged in work on critical infrastructure].

5. (Defendant) knew (victim) was a[n] [law enforcement officer] [firefighter] [emergency medical care provider] [hospital personnel] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college] [law enforcement explorer] [non-sworn law enforcement agency employee who was certified as an agency inspector] [blood alcohol analyst] [breath test operator] [railroad special officer] [licensed security officer] [utility worker].

6. At the time of the Assault, (victim) was engaged in the lawful performance of [his] [her] duties.

For cases where the alleged victim is a law enforcement officer, do not refer to the victim by name when instructing on the sentence below. Instead, the instruction must state the class of officers to which the victim belongs, e.g., deputy sheriff, probation officer, correctional officer. See Wright v. State, 586 So. 2d 1024 (Fla. 1991).

The Court instructs you that a (name of official position of victim designated in charge) is a law enforcement officer.

For cases involving other types of victims, insert definitions from § 784.07(1)(a)-(h), Fla. Stat., as appropriate. For utility workers, insert the definition of “critical infrastructure” from § 812.141, Fla. Stat.

Give if applicable. McClain v. State, 383 So. 2d 1146 (Fla. 4th DCA 1980); Smithson v. State, 689 So. 2d 1226 (Fla. 5th DCA 1997); Gilbert v. State, 347 So. 2d 1087 (Fla. 3d DCA 1977).

If the circumstances were such as to ordinarily induce a well-founded fear in the mind of a reasonable person, then (victim) may be found to have been in fear, and actual fear on the part of (victim) need not be shown.

Lesser Included Offenses

ASSAULT ON [LAW ENFORCEMENT OFFICER] [INSERT VICTIM’S JOB] — 784.07(2)(a)

Comments

See Spurgeon v. State, 114 So. 3d 1042 (Fla. 5th DCA 2013) (holding that a conviction for a violation of § 784.07(2), Fla. Stat., had to be vacated because the statute does not include physicians, employees, agents, or volunteers of facilities that do not satisfy the definition of a hospital under chapter 395).

This instruction was adopted in 1981 [431 So. 2d 594] and amended in 1992 [603 So. 2d 1175], 1995 [657 So. 2d 1152], 2007 [962 So. 2d 310], 2008 [994 So. 2d 1038], 2015 [157 So. 3d 1027], 2016 [195 So. 3d 396], on March 8, 2024, and on January 8, 2026.

8.11 BATTERY ON A[N] [LAW ENFORCEMENT OFFICER]
[INSERT VICTIM’S JOB]

§ 784.07(2)(b), Fla. Stat.

To prove the crime of Battery on a[n] [Law Enforcement Officer] [Firefighter] [Emergency Medical Care Provider] [Hospital Personnel] [Traffic Accident Investigation Officer] [Traffic Infraction Enforcement Officer] [Parking Enforcement Specialist] [Security Officer Employed by the Board of Trustees of a Community College] [Law Enforcement Explorer] [Non-sworn Law Enforcement Agency Employee Certified as an Agency Inspector] [Blood Alcohol Analyst] [Breath Test Operator] [Railroad Special Officer] [Licensed Security Officer] [Utility Worker], the State must prove the following four elements beyond a reasonable doubt. The first element defines the crime of Battery.

Give 1a or 1b or both depending on the charging document.

1. (Defendant) 

a. actually and intentionally touched or struck (victim) against [his] [her] will.

b. intentionally caused bodily harm to (victim).

2. (Victim) was a[n] [law enforcement officer] [firefighter] [emergency medical care provider] [hospital personnel] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college] [law enforcement explorer] [non-sworn law enforcement agency employee who was certified as an agency inspector] [blood alcohol analyst] [breath test operator while such employee was in uniform and engaged in processing, testing, evaluating, analyzing, or transporting a person who was detained or under arrest for DUI] [railroad special officer] [licensed security officer who wore a uniform that bore at least one patch or emblem that was visible at all times that clearly identified the employing agency and that clearly identified the person as a licensed security officer] [utility worker engaged in work on critical infrastructure].

3. (Defendant) knew (victim) was a[n] [law enforcement officer] [firefighter] [emergency medical care provider] [hospital personnel] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college] [law enforcement explorer] [non-sworn law enforcement agency employee who was certified as an agency inspector] [blood alcohol analyst] [breath test operator] [railroad special officer] [licensed security officer] [utility worker].

4. (Victim) was engaged in the lawful performance of [his] [her] duties when the Battery was committed.

Give only if applicable. Fey v. State, 125 So. 3d 828 (Fla. 4th DCA 2013).

An intentional touching or striking includes situations where a defendant knows that a touch or strike is substantially certain to result from his or her act.

Give only if applicable. Clark v. State, 783 So. 2d 967 (Fla. 2001). 

A Battery may be found as a result of the intentional touching or intentional striking of something other than the actual body of the person. However, the object that is touched or struck must have such an intimate connection with the person that it is to be regarded as a part or as an extension of the person. [For example, in cases where a person intentionally drove into another occupied vehicle, it is for you to determine whether the vehicle that was struck should be considered as a part or as an extension of the person inside that vehicle. This determination may include consideration about whether the person was “touched” through the force of impact by being jostled or otherwise impacted through the transfer of energy from the collision.]

For cases where the alleged victim is a law enforcement officer, do not refer to the victim by name when instructing on the sentence below. Instead, the instruction must state the class of officers to which the victim belongs, e.g., deputy sheriff, probation officer, correctional officer. See Wright v. State, 586 So. 2d 1024 (Fla. 1991).

The Court instructs you that a (name of official position of victim designated in charge) is a law enforcement officer.

For cases involving other types of victims, insert definitions from § 784.07(1)(a)-(h), Fla. Stat., as appropriate. For utility workers, insert the definition of “critical infrastructure” from § 812.141, Fla. Stat.

Lesser Included Offenses

BATTERY ON a[n] [LAW ENFORCEMENT OFFICER]
[insert victim’s job] — 784.07(2)(b)

Comments

See Spurgeon v. State, 114 So. 3d 1042 (Fla. 5th DCA 2013) (holding that a conviction for a violation of § 784.07(2), Florida Statutes, had to be vacated because the statute does not include physicians, employees, agents, or volunteers of facilities that do not satisfy the definition of a hospital under chapter 395).

This instruction was adopted in 1981 [431 So. 2d 594] and amended in 1992 [603 So. 2d 1175], 1995 [657 So. 2d 1152], 2007 [962 So. 2d 310], 2008 [994 So. 2d 1038], 2015 [157 So. 3d 1027], 2018 [260 So. 3d 930], on March 8, 2024, and on January 8, 2026.

8.12 AGGRAVATED ASSAULT ON A[N] [LAW ENFORCEMENT OFFICER] [INSERT VICTIM’S JOB]

§ 784.07(2)(c), Fla. Stat.

To prove the crime of Aggravated Assault on a[n] [Law Enforcement Officer] [Firefighter] [Emergency Medical Care Provider] [Hospital Personnel] [Traffic Accident Investigation Officer] [Traffic Infraction Enforcement Officer] [Parking Enforcement Specialist] [Law Enforcement Explorer] [a Non-sworn Law Enforcement Agency Employee Certified as an Agency Inspector] [Blood Alcohol Analyst] [Breath Test Operator] [Railroad Special Officer] [Licensed Security Officer] [Security Officer Employed by the Board of Trustees of a Community College] [Utility Worker], the State must prove the following seven elements beyond a reasonable doubt. The first three elements define the crime of Assault.

1. (Defendant) intentionally and unlawfully threatened, either by word or act, to do violence to (victim).

2. At the time, (defendant) appeared to have the ability to carry out the threat.

3. The act of (defendant) created in the mind of (victim) a well-founded fear that the violence was about to take place.

Give 4a or 4b or both as applicable. If 4b is alleged, give the elements of the felony charged. 

4. a. The Assault was made with a deadly weapon. 

b. The Assault was made with a fully-formed, conscious intent to commit (felony charged) upon (victim).

5. (Victim) was at the time a[n] [law enforcement officer] [firefighter] [emergency medical care provider] [hospital personnel] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college] [law enforcement explorer] [nonsworn law enforcement agency employee who was certified as an agency inspector] [blood alcohol analyst] [breath test operator while such employee was in uniform and engaged in processing, testing, evaluating, analyzing, or transporting a person who was detained or under arrest for DUI] [railroad special officer] [licensed security officer who wore a uniform that bore at least one patch or emblem that was visible at all times that clearly identified the employing agency and that clearly identified the person as a licensed security officer] [utility worker engaged in work on critical infrastructure].

6. (Defendant) knew (victim) was a[n] [law enforcement officer] [firefighter] [emergency medical care provider] [hospital personnel] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college] [law enforcement explorer][nonsworn law enforcement agency employee who was certified as an agency inspector] [blood alcohol analyst] [a breath test operator] [railroad special officer] [licensed security officer] [utility worker].

7. At the time of the Assault, (victim) was engaged in the lawful performance of [his] [her] duties.

For cases where the alleged victim is a law enforcement officer, do not refer to the victim by name when instructing on the sentence below. Instead, the instruction must state the class of officers to which the victim belongs, e.g., deputy sheriff, probation officer, correctional officer. See Wright v. State, 586 So. 2d 1024 (Fla. 1991).

The Court instructs you that a (name of official position of victim designated in charge) is a law enforcement officer.

For cases involving other types of victims, insert definitions from § 784.07(1)(a)-(h), Fla. Stat., as appropriate. For utility workers, insert the definition of “critical infrastructure” from § 812.141, Fla. Stat.

Give if applicable. McClain v. State, 383 So. 2d 1146 (Fla. 4th DCA 1980); Smithson v. State, 689 So. 2d 1226 (Fla. 5th DCA 1997); Gilbert v. State, 347 So. 2d 1087 (Fla. 3d DCA 1977).

If the circumstances were such as to ordinarily induce a well-founded fear in the mind of a reasonable person, then (victim) may be found to have been in fear, and actual fear on the part of (victim) need not be shown.

Give if element 4a alleged.

A “deadly weapon” is any object that will likely cause death or great bodily harm if used or threatened to be used in the ordinary and usual manner contemplated by its design and construction. 

Give if applicable. 

An object not designed to inflict bodily harm may nonetheless be a “deadly weapon” if it was used or threatened to be used in a manner likely to cause death or great bodily harm.

“Great bodily harm” means harm that is more than slight, trivial, minor, or moderate.

It is not necessary for the State to prove that the defendant had an intent to kill.

Lesser Included Offenses

AGGRAVATED ASSAULT ON A[N] [LAW ENFORCEMENT OFFICER] [INSERT VICTIM’S JOB]—784.07(2)(c)

Comments

*It is not clear whether a charging document that tracks the statute for Aggravated Assault with a Deadly Weapon necessarily charges Improper Exhibition. Contrast Christ v. State, 104 So. 3d 1262 (Fla. 2d DCA 2013) and Michaud v. State, 47 So. 3d 374 (Fla. 5th DCA 2010) with Mack v. State, 305 So. 2d 264 (Fla. 3d DCA 1974).

See Spurgeon v. State, 114 So. 3d 1042 (Fla. 5th DCA 2013)(holding that a conviction for a violation of § 784.07(2), Fla. Stat., had to be vacated because the statute does not include physicians, employees, agents, or volunteers of facilities that do not satisfy the definition of a hospital under chapter 395).

Num-chucks, which were originally designed as a farm tool, can be a deadly weapon. R.V. v. State, 497 So. 2d 912 (Fla. 5th DCA 1986). Jurors could find that a 7-inch straight-edged razor might be a dangerous weapon. R.R. v. State, 826 So. 2d 465 (Fla. 5th DCA 2002). In trials involving these types of objects, the judge should consider a special instruction informing jurors that an object can be a deadly weapon if its sole modern use is to cause great bodily harm or death. A special instruction may also be necessary in cases where the deadly weapon was an animal or a substance or something that is not commonly referred to as an “object.”

This instruction was approved in 1992 [603 So. 2d 1175] and amended in 1995 [657 So. 2d 1152], 2007 [962 So. 2d 310], 2008 [994 So. 2d 1038], 2013 [131 So. 3d 755], 2015 [157 So. 3d 1027], 2016 [195 So. 3d 356], on April 3, 2020, on March 24, 2024, and on January 8, 2026.

8.13 AGGRAVATED BATTERY ON A[N] [LAW ENFORCEMENT OFFICER]
[INSERT VICTIM’S JOB]

§ 784.07(2)(d), Fla. Stat.

To prove the crime of Aggravated Battery on a[n] [Law Enforcement Officer] [Firefighter] [Emergency Medical Care Provider] [Hospital Personnel] [Traffic Accident Investigation Officer] [Traffic Infraction Enforcement Officer] [Parking Enforcement Specialist] [Security Officer Employed by the Board of Trustees of a Community College] [Law Enforcement Explorer] [Non-sworn Law Enforcement Agency Employee Certified as an Agency Inspector] [Blood Alcohol Analyst] [Breath Test Operator] [Railroad Special Officer] [Licensed Security Officer] [Utility Worker], the State must prove the following five elements beyond a reasonable doubt. The first element defines the crime of Battery.

Give 1a or 1b or both as applicable.

1. (Defendant)

a. actually and intentionally touched or struck (victim) against [his] [her] will.

b. intentionally caused bodily harm to (victim).

Give 2a or 2b or both as applicable.

2. (Defendant), in committing the Battery,

a. intentionally or knowingly caused [great bodily harm] [permanent disability] [permanent disfigurement] to (victim).

b. used a deadly weapon.

3. (Victim) was a[n] [law enforcement officer] [firefighter] [emergency medical care provider] [hospital personnel] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college] [law enforcement explorer] [non-sworn law enforcement agency employee who was certified as an agency inspector] [blood alcohol analyst] [breath test operator while such employee was in uniform and engaged in processing, testing, evaluating, analyzing, or transporting a person who was detained or under arrest for DUI] [licensed security officer who wore a uniform that bore at least one patch or emblem that was visible at all times that clearly identified the employing agency and that clearly identified the person as a licensed security officer] [railroad special officer] [utility worker engaged in work on critical infrastructure].

4. (Defendant) knew (victim) was a[n] [law enforcement officer] [firefighter] [emergency medical care provider] [hospital personnel] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college] [law enforcement explorer] [non-sworn law enforcement agency employee who was certified as an agency inspector] [blood alcohol analyst] [breath test operator] [railroad special officer] [licensed security officer] [utility worker].

5. (Victim) was engaged in the lawful performance of [his] [her] duties when the Battery was committed against [him] [her].

For cases where the alleged victim is a law enforcement officer, do not refer to the victim by name when instructing on the sentence below. Instead, the instruction must state the class of officers to which the victim belongs, e.g., deputy sheriff, probation officer, correctional officer. See Wright v. State, 586 So. 2d 1024 (Fla. 1991).

The Court instructs you that a (name of official position of victim designated in charge) is a law enforcement officer.

For cases involving other types of victims, insert definitions from § 784.07(1)(a)-(h), Fla. Stat., as appropriate. For utility workers, also insert definition of “critical infrastructure” from § 812.141, Fla. Stat.

Give if element 2b alleged.

A “deadly weapon” is any object that will likely cause death or great bodily harm if used or threatened to be used in the ordinary and usual manner contemplated by its design and construction. 

Give if applicable. 

An object not designed to inflict bodily harm may nonetheless be a “deadly weapon” if it was used or threatened to be used in a manner likely to cause death or great bodily harm.

Give if applicable. 

“Great bodily harm” means harm that is more than slight, trivial, minor, or moderate.

Give only if applicable. Fey v. State, 125 So. 3d 828 (Fla. 4th DCA 2013).

An intentional touching or striking includes situations where a defendant knows that a touch or strike is substantially certain to result from his or her act.

Give only if applicable. Clark v. State, 783 So. 2d 967 (Fla. 2001). 

A Battery may be found as a result of the intentional touching or intentional striking of something other than the actual body of the person. However, the object that is touched or struck must have such an intimate connection with the person that it is to be regarded as a part or as an extension of the person. For example, in cases where a person intentionally drove into another occupied vehicle, it is for you to determine whether the vehicle that was struck should be considered as a part or as an extension of the person inside that vehicle. This determination may include consideration about whether the person was “touched” through the force of impact by being jostled or otherwise impacted through the transfer of energy from the collision. 

Lesser Included Offenses

AGGRAVATED BATTERY ON a[n] [LAW ENFORCEMENT OFFICER] [insert victim’s job] — 784.07(2)(d)

Comments

*The lesser included offense of Felony Battery is applicable only if element 2a is charged.

See Spurgeon v. State, 114 So. 3d 1042 (Fla. 5th DCA 2013) (holding that a conviction for a violation of § 784.07(2), Florida Statutes, had to be vacated because the statute does not include physicians, employees, agents, or volunteers of facilities that do not satisfy the definition of a hospital under chapter 395).

Florida law on alternative conduct statutes is unsettled. For example, in a DUI case, it is permissible for some jurors to conclude the State proved only driving while impaired, and other jurors to conclude the State proved only driving with an unlawful breath alcohol level. Euceda v. State, 711 So. 2d 122 (Fla. 3d DCA 1998). However, according to the Second District, it is improper for some jurors to conclude the State proved only that the defendant intentionally caused great bodily harm, and other jurors to conclude the State proved only that the defendant used a deadly weapon. Miller v. State, 123 So. 3d 595 (Fla. 2d DCA 2013). Unless the case law changes, in Aggravated Battery cases where the State has charged both alternatives, trial judges must give a special instruction that informs jurors they must be unanimous on each alternative theory. 

Num-chucks, which were originally designed as a farm tool, can be a deadly weapon. R.V. v. State, 497 So. 2d 912 (Fla. 5th DCA 1986). Jurors could find that a 7-inch straight-edged razor might be a dangerous weapon. R.R. v. State, 826 So. 2d 465 (Fla. 5th DCA 2002). In trials involving these types of objects, the judge should consider a special instruction informing jurors that an object can be a deadly weapon if its sole modern use is to cause great bodily harm or death. A special instruction may also be necessary in cases where the deadly weapon was an animal or a substance or something that is not commonly referred to as an “object.”

This instruction was adopted in 1992 [603 So. 2d 1175] and was amended in 1995 [657 So. 2d 1152], 2007 [962 So. 2d 310], 2008 [994 So. 2d 1038], 2015 [157 So. 3d 1027], on April 3, 2020, on March 8, 2024, and on January 8, 2026.

8.14 AGGRAVATED BATTERY ON PERSON 65 YEARS OF AGE OR OLDER

784.08(2)(a), Fla. Stat.

To prove the crime of Aggravated Battery on a Person 65 Years of Age or Older, the State must prove the following three elements beyond a reasonable doubt. The first element is a definition of Battery.

Give 1a or 1b or both as applicable. 

1. (Defendant) 

a. actually and intentionally touched or struck (victim) against [his] [her] will.

b. intentionally caused bodily harm to (victim).

Give 2a or 2b or both as applicable.

2. (Defendant) in committing the Battery

a. intentionally or knowingly caused

[great bodily harm to (victim)].

[permanent disability to (victim)].

[permanent disfigurement to (victim)].

b. used a deadly weapon.

3. (Victim) was at the time 65 years of age or older.

§ 784.08(2), Fla. Stat.

It is not necessary for the State to prove that (defendant) knew or had reason to know the age of (victim). 

Give if 2b alleged.

A “deadly weapon” is any object that will likely cause death or great bodily harm if used or threatened to be used in the ordinary and usual manner contemplated by its design and construction. 

Give if applicable. 

An object not designed to inflict bodily harm may nonetheless be a “deadly weapon” if it was used or threatened to be used in a manner likely to cause death or great bodily harm.

Give if applicable. 

“Great bodily harm” means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises.

Give only if applicable. Fey v. State, 125 So. 3d 828 (Fla. 4th DCA 2013).

An intentional touching or striking includes situations where a defendant knows that a touch or strike is substantially certain to result from his or her act.

Give only if applicable. Clark v. State, 783 So. 2d 967 (Fla. 2001). 

A battery may be found as a result of the intentional touching or intentional striking of something other than the actual body of the person. However, the object that is touched or struck must have such an intimate connection with the person that it is to be regarded as a part or as an extension of the person. For example, in cases where a person intentionally drove into another occupied vehicle, it is for you to determine whether the vehicle that was struck should be considered as a part or as an extension of the person inside that vehicle. This determination may include consideration about whether the person was “touched” through the force of impact by being jostled or otherwise impacted through the transfer of energy from the collision. 

Lesser Included Offenses

AGGRAVATED BATTERY ON PERSON 65 YEARS OF AGE OR OLDER – 784.08(2)(a)

Comments

*The lesser included offense of Felony Battery is applicable only if element 2a is charged and proved.

Florida law on alternative conduct statutes is unsettled. For example, in a DUI case, it is permissible for some jurors to conclude the State proved only driving while impaired, and other jurors to conclude the State proved only driving with an unlawful breath alcohol level. Euceda v. State, 711 So. 2d 122 (Fla. 3d DCA 1998). However, according to the Second District, it is improper for some jurors to conclude the State proved only that the defendant intentionally caused great bodily harm, and other jurors to conclude the State proved only that the defendant used a deadly weapon. Miller v. State, 123 So. 3d 595 (Fla. 2d DCA 2013). Unless the case law changes, in Aggravated Battery cases where the State has charged both alternatives, trial judges must give a special instruction that informs jurors they must be unanimous on each alternative theory. 

Num-chucks, which were originally designed as a farm tool, can be a deadly weapon. R.V. v. State, 497 So. 2d 912 (Fla. 5th DCA 1986). Jurors could find that a 7-inch straight-edged razor might be a dangerous weapon. R.R. v. State, 826 So. 2d 465 (Fla. 5th DCA 2002). In trials involving these types of objects, the judge should consider a special instruction informing jurors that an object can be a deadly weapon if its sole modern use is to cause great bodily harm or death. A special instruction may also be necessary in cases where the deadly weapon was an animal or a substance or something that is not commonly referred to as an “object.”

This instruction was adopted in 1997 [697 So.2d 84] and amended in 2007 [962 So. 2d 310], and on April 3, 2020.

8.15 AGGRAVATED ASSAULT ON PERSON 65 YEARS OF AGE OR OLDER

§ 784.08(2)(b), Fla. Stat.

To prove the crime of Aggravated Assault on a Person 65 Years of Age or Older, the State must prove the following five elements beyond a reasonable doubt. The first three elements define Assault.

1. (Defendant) intentionally and unlawfully threatened, either by word or act, to do violence to (victim).

2. At the time, (defendant) appeared to have the ability to carry out the threat.

3. The act of (defendant) created in the mind of (victim) a well-founded fear that the violence was about to take place.

Give 4a or 4b or both as applicable. If 4b is alleged, give the elements of the felony charged.

4. a. The assault was made with a deadly weapon.

b. The assault was made with a fully–formed conscious intent to commit (felony charged) upon (victim).

5. (Victim) was at the time 65 years of age or older.

§ 784.08(2), Fla. Stat.

It is not necessary for the State to prove that (defendant) knew or had reason to know the age of (victim). 

Give if applicable. McClain v. State, 383 So. 2d 1146 (Fla. 4th DCA 1980); Smithson v. State, 689 So. 2d 1226 (Fla. 5th DCA 1997); Gilbert v. State, 347 So. 2d 1087 (Fla. 3d DCA 1977).

If the circumstances were such as to ordinarily induce a well-founded fear in the mind of a reasonable person, then (victim) may be found to have been in fear, and actual fear on the part of (victim) need not be shown.

Give if 4a alleged.

A “deadly weapon” is any object that will likely cause death or great bodily harm if used or threatened to be used in the ordinary and usual manner contemplated by its design and construction. 

Give if applicable. 

An object not designed to inflict bodily harm may nonetheless be a “deadly weapon” if it was used or threatened to be used in a manner likely to cause death or great bodily harm.

“Great bodily harm” means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises.

It is not necessary for the State to prove that the defendant had an intent to kill.

Lesser Included Offenses

AGGRAVATED ASSAULT ON PERSON 65 YEARS OF AGE OR OLDER — 784.08(2)(b)

Comments

*It is not clear whether a charging document that tracks the statute for Aggravated Assault with a Deadly Weapon necessarily charges Improper Exhibition. Contrast Christ v. State, 104 So. 3d 1262 (Fla. 2d DCA 2013) and Michaud v. State, 47 So. 3d 374 (Fla. 5th DCA 2010) with Mack v. State, 305 So. 2d 264 (Fla. 3d DCA 1974).

Num-chucks, which were originally designed as a farm tool, can be a deadly weapon. R.V. v. State, 497 So. 2d 912 (Fla. 5th DCA 1986). Jurors could find that a 7-inch straight-edged razor might be a dangerous weapon. R.R. v. State, 826 So. 2d 465 (Fla. 5th DCA 2002). In trials involving these types of objects, the judge should consider a special instruction informing jurors that an object can be a deadly weapon if its sole modern use is to cause great bodily harm or death. A special instruction may also be necessary in cases where the deadly weapon was an animal or a substance or something that is not commonly referred to as an “object.”   

This instruction was adopted in 1997 [697 So. 2d 84] and amended in 2013 [131 So. 3d 755], 2016 [195 So. 3d 356], and on April 3, 2020.

8.16 BATTERY ON PERSON 65 YEARS OF AGE OR OLDER

§ 784.08(2)(c), Fla. Stat.

To prove the crime of Battery on a Person 65 Years of Age or Older, the State must prove the following two elements beyond a reasonable doubt:

Give 1a and/or 1b depending on the charging document.

1. (Defendant) 

a. actually and intentionally touched or struck (victim) against [his] [her] will.

b. intentionally caused bodily harm to (victim).

2. (Victim) was at the time 65 years of age or older.

§ 784.08(2), Fla. Stat.

It is not necessary for the State to prove that (defendant) knew or had reason to know the age of (victim). 

Give only if applicable. Fey v. State, 125 So. 3d 828 (Fla. 4th DCA 2013).

An intentional touching or striking includes situations where a defendant knows that a touch or strike is substantially certain to result from his or her act.

Give only if applicable. Clark v. State, 783 So. 2d 967 (Fla. 2001). 

A battery may be found as a result of the intentional touching or intentional striking of something other than the actual body of the person. However, the object that is touched or struck must have such an intimate connection with the person that it is to be regarded as a part or as an extension of the person. [For example, in cases where a person intentionally drove into another occupied vehicle, it is for you to determine whether the vehicle that was struck should be considered as a part or as an extension of the person inside that vehicle. This determination may include consideration about whether the person was “touched” through the force of impact by being jostled or otherwise impacted through the transfer of energy from the collision.]

Lesser Included Offenses

BATTERY ON PERSON 65 YEARS OF AGE OR OLDER — 784.08(2)(c)

Comment

This instruction was adopted in 1997 [697 So. 2d 84] and amended in 2018.

8.17 ASSAULT ON PERSON 65 YEARS OF AGE OR OLDER

§ 784.08(2)(d), Fla. Stat.

To prove the crime of Assault on a Person 65 years of Age or Older, the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) intentionally and unlawfully threatened, either by word or act, to do violence to (victim).

2. At the time, (defendant) appeared to have the ability to carry out the threat.

3. The act of (defendant) created in the mind of (victim) a well-founded fear that the violence was about to take place.

4. (Victim) was at the time 65 years of age or older.

Lesser Included Offenses

ASSAULT ON PERSON 65 YEARS OF AGE OR OLDER — 784.08(2)(d)

Comment

This instruction was adopted in 1997.

8.18 VIOLATION OF AN INJUNCTION FOR PROTECTION AGAINST DOMESTIC VIOLENCE

§ 741.31(4)(a), Fla. Stat.

To prove the crime of Violation of an Injunction for Protection Against Domestic Violence, the State must prove the following two elements beyond a reasonable doubt:

1. A temporary or final injunction for protection against domestic violence was issued by a court against (defendant) for the benefit of (victim).

2. (Defendant) willfully violated the injunction by (alleged violation* of section 741.31(4)(a)).

“Willfully” means knowingly, intentionally, and purposely.

If the allegation involves the defendant committing an act of domestic violence, define “domestic violence” from § 741.28(2), Fla. Stat.

Give if applicable if the jury finds the defendant guilty of Violation of Domestic Violence Injunction. § 741.31(4)(c), Fla. Stat.

Now that you have found the defendant guilty of Violation of Domestic Violence Injunction, you must further determine whether the State has proven beyond a reasonable doubt that the defendant was previously convicted two times or more of Violation of an Injunction against the same person.

“Conviction” means a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld or a plea of nolo contendere is entered.

Lesser Included Offense

VIOLATION OF DOMESTIC VIOLENCE INJUNCTION – 741.31

Comments

*If more than one method of violating the injunction is alleged, the courts will likely require a unanimous verdict for each alternative. Jacobs v. State, 272 So. 3d 838 (Fla. 2d DCA 2019).

This instruction can be used for the Violation of a Domestic Violence Injunction based on prior convictions. For Felony Violation of a Domestic Violence Injunction based on prior convictions, it is error to inform the jury of prior Violation of Injunction convictions until the verdict on the underlying Violation of a Domestic Violence Injunction is rendered. Therefore, if the information or indictment contains an allegation of prior Violation of Injunction convictions, do not read that allegation and do not send the information or indictment into the jury room. If the defendant is found guilty of Violation of a Domestic Violence Injunction, the historical fact of prior convictions shall be determined separately by the jury in a bifurcated proceeding. See State v. Harbaugh, 754 So. 2d 691 (Fla. 2000).

This instruction was adopted in 2007 [965 So. 2d 811] and amended in 2016 [206 So. 3d 14], and on June 6, 2022.

8.19 VIOLATION OF AN INJUNCTION FOR PROTECTION AGAINST [REPEAT] [SEXUAL] [DATING] VIOLENCE

§ 784.047, Fla. Stat.

To prove the crime of Violation of an Injunction for Protection Against [Repeat] [Sexual] [Dating] Violence, the State must prove the following two elements beyond a reasonable doubt: 

1. An injunction for protection against [repeat] [sexual] [dating] violence was issued by a court against (defendant) for the benefit of (victim).

2. (Defendant) willfully violated the injunction by (alleged violation* of section 784.047).

“Willfully” means knowingly, intentionally, and purposely.

If the allegation involves the defendant committing an act of repeat, sexual, or dating violence against the victim, give the appropriate definitions of “violence,” “repeat violence,” and/or “dating violence” from § 784.046(1), Fla. Stat., and the elements of any appropriate crime(s) supported by the evidence.

Give if applicable if the jury finds the defendant guilty of Violation of a [Repeat][Sexual][Dating] Violence Injunction. § 784.047(2), Fla. Stat.

Now that you have found the defendant guilty of Violation of a [Repeat] [Sexual] [Dating] Violence Injunction, you must further determine whether the State has proven beyond a reasonable doubt that the defendant was previously convicted two times or more of Violation of an Injunction against the same person.

“Conviction” means a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld or a plea of nolo contendere is entered.

Lesser Included Offense

VIOLATION OF REPEAT VIOLENCE, SEXUAL VIOLENCE, OR DATING VIOLENCE INJUNCTION – 784.047

Comments 

*If more than one method of violating the injunction is alleged, the courts will likely require a unanimous verdict for each alternative. Jacobs v. State, 272 So. 3d 838 (Fla. 2d DCA 2019).

This instruction can be used for Violation of a [Repeat] [Sexual] [Dating] Violence Injunction based on prior convictions. For Felony Violation of a [Repeat] [Sexual] [Dating] Violence Injunction based on prior convictions, it is error to inform the jury of prior Violation of Injunction convictions until the verdict on the underlying Violation of a [Repeat] [Sexual] [Dating] Violence Injunction is rendered. Therefore, if the information or indictment contains an allegation of prior Violation of Injunction convictions, do not read that allegation and do not send the information or indictment into the jury room. If the defendant is found guilty of Violation of a [Repeat] [Sexual] [Dating] Violence Injunction, the historical fact of prior convictions shall be determined separately by the jury in a bifurcated proceeding. See State v. Harbaugh, 754 So. 2d 691 (Fla. 2000).

This instruction was adopted in 2007 [965 So. 2d 811] and amended in 2016 [206 So. 3d 14], and on June 6, 2022.

8.20 BATTERY ON FACILITY EMPLOYEE (THROWING, TOSSING, OR EXPELLING CERTAIN FLUIDS OR MATERIALS)

§ 784.078, Fla. Stat.

To prove the crime of Battery on a Facility Employee, the State must prove the following five elements beyond a reasonable doubt:

1. (Defendant) was detained in a facility.

2. (Defendant) caused or attempted to cause (victim) to come into contact with blood, saliva, masticated food, regurgitated food, seminal fluid, urine, or feces by throwing, tossing, or expelling such fluid or material.

3. (Defendant) did so with the intent to harass, annoy, threaten, or alarm (victim).

4. (Victim) was a facility employee.

5. (Defendant) knew (victim) or reasonably should have known that (victim) was a facility employee.

Definitions.

§ 784.078(1), Fla. Stat. 

A “facility” is any state correctional institution, contractor-operated correctional facility, county, municipal, or regional jail or other detention facility of local government, or any secure facility operated and maintained by the Department of Corrections or the Department of Juvenile Justice.

§ 944.710, Fla. Stat.

A “contractor-operated correctional facility” is any facility, which is not operated by the Department of Corrections, for the incarceration of adults or juveniles who have been sentenced by a court and committed to the custody of the Department of Corrections.

Additional definitions of the specific type of facility can be found in other statutes.

§ 784.078(2), Fla. Stat.

An “employee” is any person [employed by or performing contractual services for a public or private entity operating a facility] [or] [employed by or performing contractual services for the corporation operating the prison enhancement programs or the correctional work programs, pursuant to part II of chapter 946] [or] [who is a parole examiner with the Florida Commission on Offender Review].

Lesser Included Offenses

BATTERY ON FACILITY EMPLOYEE — 784.078

Comment

This instruction was adopted in 2003 [850 So. 2d 1272] and amended in 2018 [260 So. 2d 930], and on September 20, 2024.

8.21 [ASSAULT] [AGGRAVATED ASSAULT] [BATTERY] [AGGRAVATED BATTERY] BY A DETAINEE UPON [ANOTHER DETAINEE] [A VISITOR]

§ 784.082, Fla. Stat.

To prove the crime of (insert crime), the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) was detained in a [prison] [jail] [detention facility].

2. At the time, (defendant) committed [an assault] [an aggravated assault] [a battery] [an aggravated battery] against (victim).

3. (Victim) was a [detainee] [visitor] in that facility.

Give as applicable.

An assault is legally defined as (insert applicable portions of instruction 8.1).

An aggravated assault is legally defined as (insert applicable portions of instruction 8.2).

A battery is legally defined as (insert applicable portions of instruction 8.3).

An aggravated battery is legally defined as (insert applicable portions of instruction 8.4 and/or 8.4(a).

Lesser Included Offenses

See relevant instructions on offenses in element 2 for appropriate lesser-included offenses.

Comment

This instruction was adopted in 2013.

8.22 WRITTEN [OR ELECTRONIC] THREAT TO [KILL] [DO BODILY INJURY] [CONDUCT A MASS SHOOTING] [CONDUCT AN ACT OF TERRORISM]

§ 836.10, Fla. Stat.

To prove the crime of Written [or Electronic] Threat to [Kill] [Do Bodily Injury] [Conduct a Mass Shooting] [Conduct an Act of Terrorism], the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) made a threat to [kill] [or] [do bodily harm to another person] [or] [conduct a mass shooting] [or] [conduct an act of terrorism] in a writing [or other record]. 

2. (Defendant) [sent, posted, or transmitted] [or] [procured the sending, posting, or transmission of] that writing [or other record].

3. (Defendant) did so in any manner in which it may be viewed by another person.

4. (Defendant) intended the threat to be a true threat. 

A true threat is a serious expression of an intent to commit an act of violence.

Give if applicable. 

To “procure” means to persuade, induce, prevail upon, or cause a person to do something. 

Give if applicable.

“Other record” includes an electronic record. The term “electronic record” means any record created, modified, archived, received, or distributed electronically which contains any combination of text, graphics, video, audio, or pictorial represented in digital form, but does not include a telephone call. 

Give if applicable. § 775.30(1), Fla. Stat. The judge may need to instruct on certain criminal laws that are violent acts or acts dangerous to human life, or a violation of § 815.06, Fla. Stat. (Instructions #12.6-12.8). 

“Terrorism” means an activity that:

(a) involves:

1. a violent act or an act dangerous to human life which is a violation of the criminal laws of this state or of the United States; or

2. A violation of s. 815.06; 

and

(b) is intended to:

1. intimidate, injure, or coerce a civilian population;

2. influence the policy of a government by intimidation or coercion; or

3. affect the conduct of government through destruction of property, assassination, murder, kidnapping, or aircraft piracy.

Lesser Included Offenses

WRITTEN [OR ELECTRONIC] THREAT TO [KILL] [DO BODILY INJURY] [CONDUCT A MASS SHOOTING] [CONDUCT AN ACT OF TERRORISM] – 836.10

Comments

T.R.W. v. State, 363 So. 3d 1081 (Fla. 4th DCA 2023) and Counterman v. Colorado, 600 U.S. 66 (2023) require a mens rea element to be added to the statute. As of November 2023, it was unclear whether other district courts of appeal or the Florida Supreme Court will determine that intent is not required because a recklessness standard is sufficient. 

As of November 2023, it is unclear whether the courts will require the state to prove either that the victim felt threatened or that a reasonable person in victim’s position would have felt threatened. 

This instruction was adopted in 2013 [131 So. 3d 720] and amended in 2018 [260 So. 3d 1024], on December 15, 2021, on January 6, 2023, on May 5, 2023, and on December 15, 2023.

8.22(a) THREAT TO [KILL] [DO SERIOUS BODILY HARM TO] A [PUBLIC OFFICIAL] [FAMILY MEMBER OF A PUBLIC OFFICIAL]

§ 836.12(2), Fla. Stat.

To prove the crime of Threat to [Kill] [Do Serious Bodily Harm to] a [Public Official] [Family Member of a Public Official], the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) knowingly and willfully threatened to [kill] [do serious bodily harm to] (person receiving threat).

2. At the time, (person receiving threat) was a[n] [family member of a[n]] [law enforcement officer] [state attorney] [assistant state attorney] [firefighter] [judge] [justice] [judicial assistant] [a clerk of court or clerk personnel] [elected official] [general magistrate] [special magistrate] [child support enforcement hearing officer] [administrative assistant].

3. At the time, (defendant) knew (person receiving threat) was a[n] [family member of a[n]] [law enforcement officer] [state attorney] [assistant state attorney] [firefighter] [judge] [justice] [judicial assistant] [a clerk of court or clerk personnel] [elected official] [general magistrate] [special magistrate] [child support enforcement hearing officer] [administrative assistant].

“Willfully” means intentionally and purposely. 

Virginia v. Black, 538 U.S. 343 (2003); Romero v. State, 314 So. 3d 699 (Fla. 3d DCA 2021).

“Threatened” means to communicate, by word or act, a serious expression of an intent to commit an act of violence to a particular individual.

It is not necessary for the State to prove that (defendant) intended to actually commit the threatened act of violence.

Give as applicable. 

“Family member” means:

1. An individual related to another individual by blood or marriage; or

2. An individual who stands in loco parentis to another individual. “In loco parentis” means in place of a parent.

“Law enforcement officer” means any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof; who is vested with authority to bear arms and make arrests; and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state.

Definitions for part-time and auxiliary law enforcement officers can be found in § 943.10, Fla. Stat.

“Law enforcement officer” includes all certified supervisory and command personnel whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full-time law enforcement officers, part-time law enforcement officers, or auxiliary law enforcement officers but does not include support personnel employed by the employing agency.

Federal law enforcement officer.

“Law enforcement officer” includes a person who is employed by the Federal Government as a full-time law enforcement officer as defined by federal law, who is empowered to effect an arrest for violations of the United States Code, who is authorized to carry firearms in the performance of her or his duties, and who has received law enforcement training equivalent to that prescribed for state law enforcement officers.

“Administrative assistant” means a court employee assigned to the office of a specific general magistrate, special magistrate, or child support enforcement hearing officer.

“Judicial assistant” means a court employee assigned to the office of a specific judge or justice responsible for providing administrative, secretarial, and clerical support to the assigned judge or justice.

“Firefighter” means an individual who holds a current and valid Firefighter Certificate of Compliance or Special Certificate of Compliance issued by the Division of State Fire Marshal under Florida law.

§ 836.12, Fla. Stat. The section below can be used if a prior violation is not treated as a recidivist fact that can be proven to a judge at sentencing. If the prior violation is an element of the felony crime, it is error to inform the jury of the prior violation until the verdict on the underlying crime is rendered. Therefore, if the information or indictment contains an allegation of a prior violation, that allegation must not be read to the jury before the verdict and the information or indictment must not be given to the jurors before the verdict. If the defendant is found guilty, the historical fact of a prior violation shall be determined separately by the jury in a bifurcated proceeding. See State v. Harbaugh, 754 So. 2d 691 (Fla. 2000).

Now that you have found the defendant guilty of Threat to [Kill] [Do Serious Bodily Harm to] a [Public Official] [Family Member of a Public Official], you must further determine whether the State has proven beyond a reasonable doubt that the defendant was previously convicted of the same crime. 

“Conviction” means a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld or a plea of nolo contendere is entered.

Lesser Included Offenses

THREAT TO [KILL] [DO SERIOUS BODILY HARM TO] A [PUBLIC OFFICIAL] [FAMILY MEMBER OF A PUBLIC OFFICIAL] — 836.12(2)

Comments

As of February 2026, it is unclear whether the courts will require the state to prove either that the victim felt threatened or that a reasonable person in victim’s position would have felt threatened. 

This instruction was adopted in 2017 [217 So. 3d 965] and amended on April 5, 2021, on January 7, 2022, on December 15, 2023, and on March 20, 2026.

8.22(b) HARASSING A PUBLIC OFFICIAL WITH INTENT TO AFFECT A LAWFUL DUTY 

§ 836.12(3), Fla. Stat.

To prove the crime of Harassing a Public Official with Intent to Affect a Lawful Duty, the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) knowingly and willfully harassed (name of public official).

2. At the time, (name of public official) was a[n] [law enforcement officer] [state attorney] [assistant state attorney] [firefighter] [judge] [justice] [judicial assistant] [clerk of court or clerk personnel] [elected official] [general magistrate] [special magistrate] [child support enforcement hearing officer] [administrative assistant].  

3. (Defendant) knew (name of public official) was a[n] [law enforcement officer] [state attorney] [assistant state attorney] [firefighter] [judge] [justice] [judicial assistant] [clerk of court or clerk personnel] [elected official] [general magistrate] [special magistrate] [child support enforcement hearing officer] [administrative assistant].

4. (Defendant) did so with the intent to intimidate or coerce (name of public official) to perform or refrain from performing a lawful duty.

“Willfully” means intentionally and purposely. 

“To intimidate” means that (name of public official) would reasonably be in fear of harm as a result of the defendant’s behavior.

Give as applicable.

“Law enforcement officer” means any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof; who is vested with authority to bear arms and make arrests; and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state.

Definitions for part-time and auxiliary law enforcement officers can be found in § 943.10, Fla. Stat.

“Law enforcement officer” includes all certified supervisory and command personnel whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full-time law enforcement officers, part-time law enforcement officers, or auxiliary law enforcement officers but does not include support personnel employed by the employing agency.

Federal law enforcement officer.

“Law enforcement officer” includes a person who is employed by the Federal Government as a full-time law enforcement officer as defined by federal law, who is empowered to effect an arrest for violations of the United States Code, who is authorized to carry firearms in the performance of her or his duties, and who has received law enforcement training equivalent to that prescribed for state law enforcement officers.

“Administrative assistant” means a court employee assigned to the office of a specific general magistrate, special magistrate, or child support enforcement hearing officer.

“Judicial assistant” means a court employee assigned to the office of a specific judge or justice responsible for providing administrative, secretarial, and clerical support to the assigned judge or justice.

“Firefighter” means an individual who holds a current and valid Firefighter Certificate of Compliance or Special Certificate of Compliance issued by the Division of State Fire Marshal under Florida law.

Lesser Included Offense

HARASSING A PUBLIC OFFICIAL WITH INTENT TO AFFECT A LAWFUL DUTY — 836.12(3)

Comments

As of February 2026, it was unclear if the definition of “harass” in the Stalking statute (§ 784.048, Fla. Stat.) or the Criminal Use of Personal Identification statute (§ 817. 568), or some other definition, applies to this statute.

As of February 2026, it is unclear whether the courts will require the state to prove either that the victim felt harassed or that a reasonable person in the victim’s position would have felt harassed.

This instruction was adopted on December 15, 2023, and amended on March 20, 2026.

8.23 EXTORTION

§ 836.05, Fla. Stat.

To prove the crime of Extortion, the State must prove the following [four] [five] elements beyond a reasonable doubt:

1. (Defendant) made a [written] [printed] [verbal] communication to (name of person).

2. In that communication, (defendant) threatened to 

Give as applicable.

a. accuse another person of any [crime] [offense].

b. injure another person. 

c. injure the [property] [reputation] of another person.

d. expose another person to disgrace.

e. expose any secret affecting another person.

f. impute any deformity or lack of chastity to another person.

3. (Defendant’s) threat was made maliciously.

4. (Defendant’s) threat was made with the intent to

Give as applicable.

g. extort money [or any pecuniary advantage whatsoever] from [(name of person)] [any person].

h. compel [(name of person)] [any person] to do any act or refrain from doing any act against [his] [or] [her] will.

If the person in element #1 is not the same person in element #4, then the defendant’s threat was indirect. In those cases, the trial judge must also instruct on element #5. See Calamia v. State, 125 So. 3d 1007 (Fla. 5th DCA 2013).

5. At the time (defendant) made the threat, [he] [she] intended that the threat be communicated to (insert name of person in element #4 who was extorted or compelled).

Tomlinson v. State, 369 So. 3d 1142 (Fla. 2023).

“Maliciously” means intentionally and without any lawful justification.

§ 893.05(2) Fla. Stat. Give only if applicable. 

If you find the defendant guilty of Extortion, you must further determine whether the State proved beyond a reasonable doubt that at the time of the Extortion, [he] [she] was acting as a foreign agent and with the intent of benefiting a foreign country of concern.

§ 812.081, Fla. Stat.

A “foreign agent” means any officer, employee, proxy, servant, delegate, or representative of a foreign government. 

§ 692.201, Fla. Stat. 

A “foreign country of concern” means the People’s Republic of China, the Russian Federation, the Islamic Republic of Iran, the Democratic People’s Republic of Korea, the Republic of Cuba, the Venezuelan regime of Nicolás Maduro, or the Syrian Arab Republic, including any agency of or any other entity of significant control of such foreign country of concern.  

Lesser Included Offenses

No lesser-included offenses have been identified for this crime. Attempted extortion is not a crime. Achin v. State, 436 So. 2d 30 (Fla. 1982).

Comments

It is not necessary for the State to prove the actual intent to do harm nor the ability to carry out the threat. Threats to cause mental or psychological damage are prohibited under this statute. Duan v. State, 970 So. 2d 903 (Fla. 1st DCA 2007).

As of November 2023, it is unclear whether the courts will require the state to prove either that the victim felt threatened or that a reasonable person in victim’s position would have felt threatened. 

This instruction was adopted in 2014 [143 So. 3d 893] and amended on December 15, 2023.

8.24 VIOLATION OF AN INJUNCTION FOR PROTECTION AGAINST [STALKING] [CYBERSTALKING]

§ 784.0487(4), Fla. Stat.

To prove the crime of Violation of an Injunction for Protection Against [Stalking] [Cyberstalking], the State must prove the following two elements beyond a reasonable doubt:

1. An injunction for protection against [stalking] [cyberstalking] was issued by a court against (defendant) for the benefit of (victim).

2. (Defendant) willfully violated the injunction by: 

Give as alleged.*

a. going to, or being within 500 feet of, (victim’s) residence, school, place of employment, or a specified place frequented regularly by (victim) and any named family members or individuals closely associated with (victim).

b. committing an act of stalking against (victim).

c. committing any other violation of the injunction through an intentional unlawful threat, word, or act to do violence to (victim).

d. telephoning, contacting, or otherwise communicating with (victim), directly or indirectly, unless the injunction specifically allows indirect contact through a third party. 

e. knowingly and intentionally coming within 100 feet of (victim’s) motor vehicle, whether or not that vehicle is occupied.

f. destroying (victim’s) personal property, including (victim’s) motor vehicle.

g. refusing to surrender firearms or ammunition if ordered to do so by the court.

“Willfully” means knowingly, intentionally, and purposely.

If the allegation involves the defendant committing an act of stalking against victim, give the elements of stalking from Instruction 8.6.

Give if applicable if the jury finds the defendant guilty of Violation of Domestic Violence Injunction. § 784.0487(4)(b), Fla. Stat.

Now that you have found the defendant guilty of Violation of an Injunction for Protection Against [Stalking] [Cyberstalking], you must further determine whether the State has proven beyond a reasonable doubt that the defendant was previously convicted two times or more of Violation of an Injunction against the same person.

“Conviction” means a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld or a plea of nolo contendere is entered.

Lesser Included Offense

VIOLATION OF INJUNCTION FOR PROTECTION AGAINST [STALKING] [CYBERSTALKING] – 784.0487(4)

Comments 

*The courts require a unanimous verdict for each alternative way to violate an injunction for protection against stalking or cyberstalking. See Jacobs v. State, 272 So. 3d 838 (Fla. 2d DCA 2019).

This instruction can be used for Violation of an Injunction for Protection Against [Stalking] [Cyberstalking] based on prior convictions. For Felony Violation of an Injunction for Protection Against [Stalking] [Cyberstalking] based on prior convictions, it is error to inform the jury of prior Violation of Injunction convictions until the verdict on the underlying Violation of an Injunction for Protection Against [Stalking] [Cyberstalking] is rendered. Therefore, if the information or indictment contains an allegation of prior Violation of Injunction convictions, do not read that allegation and do not send the information or indictment into the jury room. If the defendant is found guilty of Violation of an Injunction for Protection Against [Stalking] [Cyberstalking], the historical fact of prior convictions shall be determined separately by the jury in a bifurcated proceeding. See State v. Harbaugh, 754 So. 2d 691 (Fla. 2000).

This instruction was adopted in 2013 [131 So. 3d 755] and amended in 2016 [206 So. 3d 14], and on June 6, 2022.

8.25 VIOLATION OF A CONDITION OF PRETRIAL RELEASE FROM A DOMESTIC VIOLENCE CHARGE

§ 741.29(7), Fla. Stat.

To prove the crime of Violation of a Condition of Pretrial Release from a Domestic Violence Charge, the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) was arrested for an act of domestic violence.

2. Before [his] [her] trial, (defendant’s) release on the domestic violence charge was set with a condition of (insert condition of pretrial release in Fla. Stat. 903.047).

3. (Defendant) knew that a condition of [his] [her] pretrial release was (insert condition).

4. (Defendant) willfully violated that condition of pretrial release by (insert the manner* in which the defendant is alleged to have violated pretrial release).

§ 741.28, Fla. Stat.

“Domestic violence” means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.

“Family or household members” means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.

“Willfully” means knowingly, intentionally, and purposely.

Give as applicable and if the defendant is charged with violating a no contact order.

§ 903.047(1)(b), Fla. Stat.

An order of “no contact” is effective immediately and is valid for the duration of the pretrial release or until it is modified by a judge. 

Unless otherwise stated by the judge, “no contact” means it is prohibited for (defendant) to have communicated orally or in any written form, either in person, telephonically, electronically, or in any other manner, either directly or indirectly through a third person, with [(victim)] [or] [(any other person named in the order)]. 

It is also a violation of a “no contact” order if (defendant):

a. had physical or violent contact with (victim) [or] [(other named person)] or [his] [or] [her] property.

b. was within 500 feet of (victim’s) [or] [(other named person’s)] residence, even if the defendant and (victim) [or] [(other named person)] share the residence.

c. was within 500 feet of (victim’s) [or] [(other named person’s)] [vehicle] [place of employment] [or] [(a specified place frequented regularly by such person)].

Lesser Included Offense

VIOLATION OF A CONDITION OF PRETRIAL RELEASE FROM A DOMESTIC VIOLENCE CHARGE — 741.29(7)

Comments

*If more than one method of violating the condition of pretrial release is alleged, the courts will likely require a unanimous verdict for each alternative. Jacobs v. State, 272 So. 3d 838 (Fla. 2d DCA 2019).

This instruction was adopted in 2014 [141 So. 3d 1201] and amended in 2017 [213 So. 3d 680], and on June 6, 2022. 

8.26 SEXUAL CYBERHARASSMENT FOR FINANCIAL GAIN

§ 784.049(4), Fla. Stat.

To prove the crime of Sexual Cyberharassment for Financial Gain, the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) willfully and maliciously [published to an internet website] [or] [disseminated through electronic means to another person] a sexually explicit image of (victim). 

2. (Victim) did not consent to the [publication] [or] [dissemination].

3. The [publication] [or] [dissemination] was contrary to (victim’s) reasonable expectation that the image would remain private. 

4. (Defendant) did so for pecuniary gain or other financial gain. 

“Willfully” means knowingly, intentionally, and purposely.

A person has a reasonable expectation that a sexually explicit image would remain private if:

1. The image contains or conveys the personal identification information of the depicted person;

or

2. The personal identification information of the depicted person is not contained or conveyed in the image itself, but is contemporaneously published or disseminated in such a manner that a person viewing the personal identification information would reasonably know that such information directly relates to the person depicted in the sexually explicit image.

Evidence that the depicted person sent a sexually explicit image to another person does not, on its own, remove his or her reasonable expectation of privacy for that image.

“Sexually explicit image” means any image depicting nudity or depicting any person engaging in sexual conduct or depicting the display of semen or vaginal secretion on a person.

“Image” includes but is not limited to, any photograph, picture, motion picture, film, video, or representation. 

“Nudity” means showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering; or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple; or the depiction of covered male genitals in a discernibly turgid state. [A mother breastfeeding her baby does not under any circumstance constitute “nudity,” irrespective of whether or not the nipple is covered during or incidental to feeding.]

If necessary, insert additional definitions from § 847.001, Fla. Stat.  

“Sexual conduct” means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. [A mother breastfeeding her baby does not under any circumstance constitute “sexual conduct.”]

“Personal identification information” means any information that identifies a person, and includes, but is not limited to, any name, postal or electronic mail address, telephone number, social security number, date of birth, or any unique physical representation.

As of February 2026, the courts had not determined whether the sexual cyberharassment statute requires actual malice or legal malice. The explanation of the two can be found in Seese v. State, 955 So. 2d 1145 (Fla. 4th DCA 2007). In the absence of clarification, trial judges must choose one of the following:

“Maliciously” means intentionally and without any lawful justification.

“Maliciously” means with ill will, hatred, spite, or an evil intent.

Lesser Included Offenses

SEXUAL CYBERHARASSMENT FOR FINANCIAL GAIN— 784.049(4)

Comments

Sexual Cyberharassment for Financial Gain is a third degree felony. Simple Sexual Cyberharassment is a first degree misdemeanor. This instruction can be used for a misdemeanor Sexual Harassment trial if element #4 is not read to the jury.  

Both Sexual Cyberharassment for Financial Gain and simple Sexual Cyberharassment can be bumped up one degree in severity based on the existence of a prior conviction. For purposes of this statute, the term “conviction” means a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld or a plea of nolo contendere is entered.

As of February 2026, it is unclear whether the existence of a prior conviction should be treated as an element of the crime that must be found by the jury or whether a prior conviction can be proven to the judge at sentencing. If treated as an element, it would be error to inform the jury of a prior conviction. Therefore, if the information or indictment contains an allegation of a prior conviction, do not read the allegation and do not send the information or indictment into the jury room. If the defendant is found guilty, the historical fact of a previous conviction would be determined beyond a reasonable doubt in a bifurcated proceeding. See State v. Harbaugh, 754 So. 2d 691 (Fla. 2000). 

This instruction was adopted in 2018 [238 So. 3d 192] and was amended in 2020 [290 So. 3d 864], and on March 20, 2026.

8.27 VIOLATION OF AN INJUNCTION FOR PROTECTION AGAINST EXPLOITATION OF A [VULNERABLE ADULT] [PERSON 65 YEARS OF AGE OR OLDER]

§ 825.1036(4), Fla. Stat.; § 817.5695(6), Fla. Stat. 

To prove the crime of Violation of an Injunction for Protection Against Exploitation of a [Vulnerable Adult] [Person 65 Years of Age or Older], the State must prove the following two elements beyond a reasonable doubt:

1. A [temporary] [final] injunction for protection against exploitation of a [vulnerable adult] [person 65 years of age or older] was issued by a court against (defendant) for the benefit of (victim).

2. (Defendant) willfully violated the injunction by (alleged violation* of      § 825.1036(4)(a)1.–7., Fla. Stat.).

“Willfully” means knowingly, intentionally, and purposely.

If the allegation involves the defendant exploiting a vulnerable adult, define “exploitation” from § 825.103(1), Fla. Stat.

Lesser Included Offense

VIOLATION OF AN INJUNCTION FOR PROTECTION AGAINST EXPLOITATION OF A [VULNERABLE ADULT] [person 65 years of age or older] — 825.1036

Comments

*If more than one method of violating the injunction is alleged, the courts will likely require a unanimous verdict for each alternative. Jacobs v. State, 272 So. 3d 838 (Fla. 2d DCA 2019). 

The crime of Violation of an Injunction for Protection Against Exploitation of a Vulnerable Adult is bumped up from a first-degree misdemeanor to a third-degree felony if the defendant had two or more prior convictions for violating either an injunction or a foreign protection order involving the same victim. It is unclear whether the courts will require the historical fact of the prior convictions against the same victim to be proven to the jury or whether only the sentencing judge may find that the prior convictions against the same victim exist. If the issue is to be submitted to a jury, it is error to inform the jury of the allegation of prior convictions until the verdict on the underlying Violation of an Injunction is rendered. Therefore, if the charging document contains an allegation of prior Violation of Injunction convictions, do not read that allegation and do not send the information or indictment into the jury room prior to a verdict. If the defendant is found guilty of Violation of an Injunction for Protection Against Exploitation of a Vulnerable Adult, the historical fact of prior convictions against the same victim shall be determined separately in a bifurcated proceeding. State v. Harbaugh, 754 So. 2d 691 (Fla. 2000). The term “conviction” means a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld or a plea of nolo contendere is entered. § 825.1036(4)(b), Fla. Stat.

Exploitation of a vulnerable adult includes a person 65 years of age or older who is or may be subject to exploitation as described in § 817.5695, Fla. Stat. See § 825. 1036, Fla. Stat. and Instruction 14.9(a). 

This instruction was adopted in 2018 [259 So. 3d 753], and amended on June 6, 2022, and on March 8, 2024.

8.28 VIOLATION OF A RISK PROTECTION ORDER

§ 790.401(11)(b), Fla. Stat.

To prove the crime of Violation of a Risk Protection Order, the State must prove the following three elements beyond a reasonable doubt:

1. A [temporary] [final] risk protection order was issued by a court against (defendant).

2. (Defendant) knew that [he] [she] was prohibited from [possessing] [or] [having in [his] [her] custody or control] [or] [receiving] [or] [purchasing] [a firearm] [or] [ammunition] because of that court order.

3. (Defendant) violated the court order by knowingly [possessing] [or] [having in [his] [her] custody or control] [or] [receiving] [or] [purchasing] [a firearm] [or] [ammunition].

Give as applicable.

§ 790.001, Fla. Stat.

A “firearm” means any weapon [including a starter gun] which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; [the frame or receiver of any such weapon;] [any firearm muffler or firearm silencer;] [any destructive device;] [any machine gun]. [The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of another crime. An antique firearm is (insert definition in       § 790.001, Fla. Stat.)] [A destructive device is (insert definition in § 790.001, Fla. Stat.)].

§ 790.001, Fla. Stat.

“Ammunition” means an object consisting of all of the following:

a. A fixed metallic or nonmetallic hull or casing containing a primer.

b. One or more projectiles, one or more bullets, or shot.

c. Gunpowder.

Possession.

To prove (defendant) “possessed” [a firearm] [or] [ammunition], the State must prove beyond a reasonable doubt that [he] [she] a) knew of the existence of the [firearm] [or] [ammunition] and b) intentionally exercised control over it.

Give if applicable.

Control can be exercised over [a firearm] [or] [ammunition] whether it is carried on a person, near a person, or in a completely separate location. Mere proximity to [a firearm] [or] [ammunition] does not establish that the person intentionally exercised control over it in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the [firearm] [or] [ammunition] or the present ability to direct its control by another. 

Joint possession.

Possession of [a firearm] [or] [ammunition] may be sole or joint, that is, two or more persons may possess it.

Lesser Included Offense

VIOLATION OF A RISK PROTECTION ORDER —790.401(11)(b)

Comment

This instruction was adopted in 2018.

8.29 CYBERINTIMIDATION BY PUBLICATION

§ 836.115, Fla. Stat.

To prove the crime of Cyberintimidation by Publication, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) electronically published (victim’s) personal identification information.

2. (Defendant) did so with the intent to [or with the intent that a third party will use the information to] [incite violence or commit a crime against (victim)] [or] [threaten or harass (victim), placing (victim) in reasonable fear of bodily harm].

§ 836.115(1)(a), Fla. Stat. 

“Electronically publish” means to disseminate, post, or otherwise disclose information to an Internet site or forum.

§§ 836.115(1)(c), 817.568(1)(f), Fla. Stats.

“Personal identification information” means any name or number that may be used, alone or in conjunction with any other information, to identify a specific person, including any:

1. Name, postal or electronic mail address, telephone number, social security number, date of birth, mother’s maiden name, official state-issued or United States-issued driver license or identification number, alien registration number, government passport number, employer or taxpayer identification number, Medicaid or food assistance account number, bank account number, credit or debit card number, or personal identification number or code assigned to the holder of a debit card by the issuer to permit authorized electronic use of such card;

2. Unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation;

3. Unique electronic identification number, address, or routing code;

4. Medical records;

5. Telecommunication identifying information or access device; or

6. Other number or information that can be used to access a person’s financial resources.

Give if applicable. §§ 836.115(1)(b), 817.568(1)(c), Fla. Stats.

“Harass” means to engage in conduct directed at a specific person that is intended to cause substantial emotional distress to such person and serves no legitimate purpose. “Harass” does not mean to use personal identification information for accepted commercial purposes. The term does not include constitutionally protected conduct such as organized protests or the use of personal identification information for accepted commercial purposes. 

Lesser Included Offense

CYBERINTIMIDATION BY PUBLICATION — 836.115

Comment

This instruction was adopted on March 7, 2022.

8.30 [HARASSING] [OR] [OBSCENE] TELEPHONE CALL[S] [OR] KNOWINGLY PERMITTING [HARASSING] [OR] [OBSCENE] TELEPHONE CALL[S]

§ 365.16(1) and (2), Fla. Stat.

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

Give as applicable.

§ 365.16(1)(a), Fla. Stat. 

1. (Defendant) made a telephone call to a location at which the person receiving the call had a reasonable expectation of privacy.

2. During the call, (defendant) made a comment, request, suggestion, or proposal that was obscene, lewd, lascivious, filthy, vulgar, or indecent.

3. At the time, (defendant’s) call or language was intended by [him] [her] to abuse, threaten, or harass any person at the called number.   

§ 365.16(1)(b), Fla. Stat. 

1. (Defendant) made a telephone call, whether or not conversation ensued. 

2. During the call, (defendant) did not disclose [his] [her] identity. 

3. At the time, (defendant) had the intent to abuse, threaten, or harass any person at the called number.   

§ 365.16(1)(c), Fla. Stat. 

1. (Defendant) made or caused the telephone of another to repeatedly or continuously ring. 

2. At the time, (defendant) had the intent to harass any person at the called number. 

§ 365.16(1)(d), Fla. Stat. 

1. (Defendant) made repeated telephone calls during which conversation ensued.  

2. (Defendant) made the calls solely to harass any person at the called number. 

§ 365.16(2), Fla. Stat.

1. (Defendant) knowingly permitted any telephone under [his] [her] control to be used by another person. 

2. (Defendant) did so knowing that the telephone was being or would be used to:   

Give as applicable.  

a. make a telephone call to a location at which the person receiving the call had a reasonable expectation of privacy during which the caller makes any comment, request, suggestion, or proposal which is obscene, lewd, lascivious, filthy, vulgar, or indecent with the intent to abuse, threaten, or harass any person at the called number.

b. make a telephone call, whether or not conversation ensues, without disclosing his or her identity, with the intent to threaten or harass any person at the called number.

c. make or cause the telephone of another to repeatedly or continuously ring with the intent to harass any person at the called number.

d. make repeated telephone calls, during which conversation ensues, solely to harass any person at the called number.

Definitions. Give as applicable.

§ 365.161(1), Fla. Stat.

“Obscene” means a communication which:

1. The average person applying contemporary community standards would find, taken as a whole, appeals to the prurient interests; 

2. Describes, in a patently offensive way, deviate sexual intercourse, sadomasochistic abuse, sexual battery, sexual bestiality, sexual conduct, or sexual excitement; and

3. Taken as a whole, lacks serious literary, artistic, political, or scientific value.

“Deviate Sexual Intercourse” means sexual conduct between persons consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva. 

“Sadomasochistic abuse” means flagellation or torture by or upon a person or the condition of being fettered, bound, or otherwise physically restrained for the purpose of deriving sexual satisfaction or satisfaction brought about as a result of sadistic violence, from inflicting harm on another or receiving such harm oneself.

“Sexual Battery” means oral, anal, or female genital* penetration by, or union with, the sexual organ of another or the anal or female genital penetration of another, by any other object.  

“Female genitals*” includes the labia minora, labia majora, clitoris, vulva, hymen, and vagina.

Give if applicable.

Lakey v. State, 113 So. 3d 90 (Fla. 5th DCA 2013).

“An object” includes a finger.

Phillips v. State, 238 So. 3d 308 (Fla. 4th DCA 2018). 

“Union” means contact.

“Sexual bestiality” means any sexual act, actual or simulated, between a person and an animal involving the sex organ of the one and the mouth, anus, or female genitals of the other.

“Sexual Conduct” means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse or any act or conduct that constitutes sexual battery. 

“Sexual excitement” means the condition of human male or female genitals when in a state of sexual stimulation or arousal.

“Lewd” and “Lascivious” mean the same thing: a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing an act.

Lesser Included Offense

HARASSING OR OBSCENE TELEPHONE CALLS OR KNOWINGLY PERMITTING HARASSING OR OBSCENE TELEPHONE CALLS — 365.16(1) and (2)

Comments 

*Effective October 1, 2022, the Legislature changed “vagina” to “female genitals” in sex crimes-related statutes. Judges should ensure the jury instructions contain correct statutory terms, which will depend on the date alleged in the charging document. Flores v. State, 391So. 3d 481 (Fla. 4th DCA 2024) is an example of an appellate court finding fundamental error when the trial judge expanded the definition of “vaginal penetration” by instructing on “female genital penetration.”  

As of November 2022, it was unclear whether the definition of “harass” in the stalking statute applies to this statute.

This instruction was adopted on December 21, 2022.

8.31 MALICIOUS [BATTERY] [OR] [INFLICTION OF CRUEL OR INHUMAN TREATMENT] CAUSING [GREAT BODILY HARM] [PERMANENT DISABILITY] [PERMANENT DISFIGUREMENT] BY A STATE CORRECTIONS DEPARTMENT EMPLOYEE UPON AN [INMATE] [OFFENDER]

§ 944.35(3)(a)2., Fla. Stat.

To prove the crime of (name of crime), the State must prove the following five elements beyond a reasonable doubt:

Give as applicable. 

1. (Defendant) 

a. actually and intentionally touched or struck (victim) against [his] [her] will. 

b. intentionally caused bodily harm to (victim). 

c. inflicted cruel or inhuman treatment by neglect or otherwise.

2. (Defendant) did so with malicious intent. 

3. At the time, (defendant) was an employee of the Florida Department of Corrections. 

4. At the time, (victim) was an [inmate] [offender supervised in the community by the Florida Department of Corrections]. 

5. In so doing, (defendant) caused [great bodily harm] [permanent disability] [permanent disfigurement] to (victim).

As of March 2023, there was no case law about whether the statute requires legal malice or actual malice. In the absence of case law or a statutory amendment, trial judges should instruct on malicious intent as either acting with ill will, hatred, spite, or an evil intent; or wrongfully, intentionally, and without legal justification or excuse.

Give if applicable. 

“Great bodily harm” means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises.

Lesser Included Offenses

MALICIOUS [BATTERY] [OR] [INFLICTION OF CRUEL OR INHUMAN TREATMENT] CAUSING [GREAT BODILY HARM] [PERMANENT DISABILITY] [PERMANENT DISFIGUREMENT] BY A STATE CORRECTIONS DEPARTMENT EMPLOYEE UPON AN [INMATE] [OFFENDER]— 944.35(3)(a)2.

Comments

A Department of Corrections employee is authorized to apply physical force under circumstances listed in § 944.35(1)(a), Fla. Stat. The provisions in that section are likely to be treated as an affirmative defense to this crime. As of January 2023, there is no case law about whether the burden of persuasion is on the defendant to prove the truth of the defense or on the Statfe to disprove the defense. Assuming judges treat § 944.35(1)(a), Fla. Stat. as an affirmative defense, when at issue, trial judges will also need to decide the standard of proof (preponderance of the evidence, clear and convincing, or beyond a reasonable doubt) for the party that bears the burden of persuasion.  

This instruction was adopted on April 25, 2023.

8.32 HARASSMENT OR INTIMIDATION BASED ON RELIGIOUS OR ETHNIC HERITAGE [WITH A CREDIBLE THREAT] 

§ 784.0493, Fla. Stat.

To prove the crime of Harassment or Intimidation Based on Religious or Ethnic Heritage [With a Credible Threat], the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) willfully and maliciously harassed or intimidated (victim). 

2. The intimidation or harassment was based on (victim’s) wearing or displaying any indicia relating to any religious or ethnic heritage. 

“Willfully” means intentionally, knowingly, and purposely.

As of August 2023, it was unclear whether the statute requires actual malice or legal malice. In the absence of clarification from the legislature or an appellate court, trial judges must choose one of the following:

“Maliciously” means intentionally and without any lawful justification or excuse.

“Maliciously” means with ill will, hatred, spite, or an evil intent.

“Harass” means to engage in a course of conduct directed at (victim), that 

1. served no legitimate purpose;

2. would cause substantial emotional distress to a reasonable person; and 

3. did cause substantial emotional distress to (victim).

“Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose. 

“Intimidate” means that the defendant’s behavior caused (victim) to be reasonably in fear of harm.

Give if applicable.

If you find (defendant) guilty of Harassment or Intimidation Based on Religious or Ethnic Heritage, you must further determine whether the State proved beyond a reasonable doubt that in the course of committing the crime, [he] [she] made a credible threat to (victim). 

“Credible Threat” is defined as a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the apparent ability to carry out the threat to cause such harm. It is not necessary to prove that the person making the threat had the intent to actually carry out the threat; however, the State is required to prove the defendant was aware that a reasonable person could consider the threat as a serious expression of an intent to commit an act of violence. [The present incarceration of the person making the threat is not a bar to prosecution.] 

Lesser Included Offenses*

HARASSMENT OR INTIMIDATION BASED ON RELIGIOUS OR ETHNIC HERITAGE WITH A CREDIBLE THREAT — 784.0493(4)

Comments

*When the third-degree felony in § 784.0493(4), Fla. Stat., is charged, most judges will likely require the jurors to answer an interrogatory on the verdict form about whether the defendant made a credible threat. If so, there would be no lesser included crime of the first-degree misdemeanor in § 784.0493(3), Fla. Stat. 

A special instruction may be necessary if the defendant claims that his or her behavior was protected by the First Amendment. 

This instruction was adopted on September 8, 2023.

8.33 BATTERY BY [THROWING] [TOSSING] [PROJECTING] [EXPELLING] [BLOOD] [SEMINAL FLUID] [URINE] [OR] [FECES] ON A CHILD 

§ 784.085, Fla. Stat.

To prove the crime of Battery by [Throwing] [Tossing] [Projecting] [Expelling] [Blood] [Seminal Fluid] [Urine] [or] [Feces] on a Child, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) [knowingly caused] [or] [attempted to cause] (victim) to come into contact with [blood] [seminal fluid] [urine] [or] [feces]. 

2. (Defendant) did so by [throwing] [tossing] [projecting] [or] [expelling] such [fluid] [or] [material[s]]. 

3. At the time, (victim) was under 18 years of age. 

Lesser Included Offenses

BATTERY BY [THROWING] [TOSSING] [PROJECTING] [EXPELLING] [BLOOD] [SEMINAL FLUID] [URINE] [OR] [FECES] ON A CHILD — 784.085

Comments

Because the statute contains an exception clause for the defendant’s age, the Committee on Standard Jury Instructions in Criminal Cases concluded it is likely the courts will determine that § 784.085(1), Fla. Stat. creates an affirmative defense, not an element, that the defendant was under the age of 18. 

This instruction was adopted on May 21, 2024.

8.34 NON-CONSENSUAL [INSTALLATION] [USE] OF A TRACKING [DEVICE] [APPLICATION] 

§ 934.425(2) and (5), Fla. Stat.

To prove the crime of Non-Consensual [Installation] [Use] of a Tracking [Device] [Application], the State must prove the following two elements beyond a reasonable doubt:

Give 1a or 1b or both as applicable. 

1. (Defendant) knowingly 

a. installed or placed a tracking [device] [application] on (victim’s) property.

b. used a tracking [device] [application] to determine the location or movement of (victim’s) [person] [or] [property].

2. (Defendant) did so without (victim’s) consent.

Give as applicable. § 934.425, Fla. Stat. 

“Tracking device” means any device whose primary purpose is to reveal its location or movement by the transmission of electronic signals.

“Tracking application” means any software program whose primary purpose is to track or identify the location or movement of an individual.

Inference. Give if applicable. 

You may infer (victim’s) consent was revoked if: 

(Victim) and (defendant) were lawfully married but a petition for dissolution of marriage was filed.

Either (victim) or (defendant) filed an injunction for protection against the other person pursuant to § [741.30] [741.315] [784.046] [784.0435], Florida Statutes.

§ 934.425(5), Fla. Stat. Give if applicable. 

If you find (defendant) guilty of Non-Consensual [Installation] [Use] of a Tracking [Device] [Application], you must further determine whether the State proved beyond a reasonable doubt that [he] [she] committed the crime to commit or to facilitate the commission of a[n] (insert the name(s) of the dangerous crime(s) listed in § 907.041(5)(a), Fla. Stat.)

A[n] (insert the name(s) of the dangerous crime(s)) is defined as follows: (insert the elements of the dangerous crime(s)).

Lesser Included Offense

NON-CONSENSUAL [INSTALLATION] [USE] OF A TRACKING [DEVICE] [APPLICATION] — 934.425(2)

Comments

The victim in elements #1 and #2 does not have to be one person but cannot be a business entity, which is defined in §934.425(1)(a), Fla. Stat., as any form of corporation, partnership, association, cooperative, joint venture, business trust, or sole proprietorship that conducts business in this state.

§ 934.425(4), Fla. Stat., contains circumstances under which this crime does not apply. The courts may determine those circumstances should be treated as affirmative defenses. If so, trial judges will need to determine which party has the burden of persuasion and what that burden is (preponderance, clear and convincing, or beyond a reasonable doubt). 

This instruction was adopted on February 21, 2025, and amended on March 20, 2026. 

TABLE OF CONTENTS

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