Fla. Std. Jury Instr. (Crim.) 3.6(m)

It is a defense to the charge of [possession of a controlled substance] [trafficking via possession] for a person to briefly possess a controlled substance for the sole purpose of legal disposal. In order to find the defendant briefly possessed a controlled substance for the sole purpose of legal disposal, you must find all of the following:

1. (Defendant) possessed the controlled substance.

2. (Defendant) acquired the controlled substance without unlawful intent.

3. The possession of the controlled substance was brief and (defendant) sought to dispose of the controlled substance without delay.

4. The temporary possession was solely for the purpose of legal disposal.

Definitions.

“Legal disposal” means to destroy or throw away the controlled substance or to turn in the controlled substance to a law enforcement officer.

To “possess a substance” means the defendant a) knew of the existence of the substance and b) intentionally exercised control over that substance.

Give if applicable.

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

Joint possession. Give if applicable.

Possession of a substance may be sole or joint, that is, two or more persons may possess a substance.

This defense does not apply if (defendant) disposed of or surrendered a controlled substance because [he] [she] believed a law enforcement officer had discovered, or would have imminently discovered that [he] [she] was in possession of a controlled substance.

There is no statute for the defense of “legal disposal” and, as of October 2018, the case law is silent as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on an affirmative defense by a preponderance of the evidence.

The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See the opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.

If burden of persuasion is on the defendant:

If you find that defendant proved (insert appropriate burden of persuasion) that [he] [she] temporarily possessed the controlled substance solely for legal disposal, you should find [him] [her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that [he] [she] temporarily possessed the controlled substance solely for legal disposal, you should find [him] [her] guilty if all the elements of the charge have been proven beyond a reasonable doubt.

If burden of persuasion is on the State:

If you find that the State proved (insert appropriate burden of persuasion) that the defendant did not temporarily possess the controlled substance solely for legal disposal, you should find [him] [her] guilty, if all of the elements of the charge have been proven beyond a reasonable doubt. However, if you are not convinced (insert appropriate burden of persuasion) that the defendant did not temporarily possess the controlled substance solely for legal disposal, you should find [him] [her] not guilty.