vs.                                                                   Appeal No. CRC 00-08403 CFANO




Opinion filed _____________________.

Appeal from Order on Defendant’s Motion to Dismiss
Pinellas County Court
County Judge Robert J. Morris, Jr.

Joy K. Goodyear, Esq.
Assistant Public Defender
Attorney for Appellant

Christopher M. DeCarlo, Esq.
Assistant State Attorney
Attorney for Appellee


            THIS MATTER is before the Court on the defendant’s appeal from the trial court’s denial of defendant’s Motion to Dismiss.  After reviewing the briefs and record, this Court affirms the trial court’s decision.

            “On appeal from denial of motion to dismiss charge, Court of Appeals is required to review trial court's ruling resolving inferences from all facts in light most favorable to State.”  Wilson v. State, 744 So.2d 1237 (Fla. 1st DCA 1999).

On June 14, 1999, the defendant was involved in an argument with his fifteen-year-old son.  Prior to arguing with his son, the defendant had been drinking beer throughout the day and into the night.  During the course of the argument, the defendant slapped his son in the face several times, then left the residence.  When law enforcement officers arrived at the residence, they spoke with the son and his mother.  The officers then went to a local 7-Eleven store from where the defendant had called his wife to ask her to come get him.  The officers spoke with the defendant, then arrested him.  The defendant was later charged with Domestic Battery.

On November 12, 1999, the defendant filed a Motion to Dismiss arguing that the application of Florida Statute Section 784.03 (1999) is unconstitutionally vague as applied to a parent/child scenario because it does not give parents sufficiently clear and definite notice as to what conduct is prohibited in disciplining a child. The defendant contended that the only charges that could be brought against him were the felony charges that appear in Florida Statutes Section 827.03, which define child abuse, aggravated child abuse, and neglect of a child.  A hearing on the motion was held on April 7, 2000.  On April 11, the court entered an order denying the motion.  In the order, the trial court found that the issue of whether or not the defendant’s conduct involved discipline is a question of fact and normally one for the jury to resolve.  The trial court did not make a specific finding on the issue of the constitutionality of Section 784.03, Florida Statutes (1999), but implicit in the order is a finding that the statute is not unconstitutionally vague.

All laws are presumed constitutional unless it is shown beyond reasonable doubt that they are unconstitutional.  Davis v. State, 146 So.2d 892 (Fla. 1962).  Furthermore, a statute is void for vagueness if it fails “to convey sufficiently definite notice of what conduct is proscribed.”  State v. Gray, 435 So.2d 816, 819 (Fla. 1983).  The battery statute in question clearly specifies what conduct is proscribed which is the actual and intentional touching or striking of another person, against the will of the other, or intentionally causing bodily harm to another person.  In a parent/child scenario, there exists a judicially created “parental privilege” that a parent may assert as a defense to a battery charge brought against the parent by his or her child.  The fact that the battery statute does not set forth this defense does not render the statute unconstitutionally vague.

In Kama v. State, 507 So.2d 154 (Fla. 1st DCA 1987) the court addressed the principle of “parental privilege” by stating  “although a person who spanks a child technically commits a battery, the parties do not dispute the well established principle that a parent, or one acting in loco parentis, does not commit a crime by inflicting corporal punishment on a child subject to his authority, if he remains within the legal limits of the exercise of that authority.”  Compare State v. Hauenstein, 700 N.E.2d 378 (Ohio App.Ct. 1997)(the right of proper and reasonable parental discipline is an affirmative defense available to a parent faced with possible convictions for actions taken while disciplining a child); People v. Checketts, 71 Cal.App.4th  1190, 84 Cal.Rptr.2d 491, 494 (Cal.App.4th Dist. 1999)(parents prosecuted for battery of their children may assert parental authority as a defense); Wisconsin v. Teynor, 141 Wis.2d 187, 414  N.W.2d 76 (Wis.Ct.App.1987)(parental status affords only a privilege which may be asserted as a defense to prosecution for any crime by a parent against his or her child if the conduct is reasonable discipline of the child).

The trial court in this case found that the facts set forth in Kama clearly described a disciplinary scenario.  Moreover, the trial court in this case found that the court in Kama, having had the benefit of hearing all of the evidence in the case to make a factual determination as to whether it was a situation involving discipline, elected not to give a jury instruction of simple battery as a lesser included offense.  However, even in light of its holding, the Kama court also contemplated the situation where physical contact between a parent and child not involving discipline could include the charge of simple battery, recognizing, “…in some cases, not involving discipline of a child by a parent or other person in authority over him, the offense of aggravated child abuse may include simple battery…”  Kama, at 159.

In response to the decision in Kama, the Florida Supreme Court Committee on Standard Jury Instructions in Criminal Cases submitted an amendment to the jury instruction for Section 827.03(1)(a), Aggravated Child Abuse.  This amendment specifically sets forth Section 784.03 (simple battery), as a lesser included offense “only under certain circumstances, see Kama v. State.”  Standard Jury Instructions In Criminal Cases (97-2), 723 So.2d 123, 125 (Fla. 1998).

We find that the battery statute is not unconstitutionally vague as applied to parent/child scenarios. The battery statute conveys sufficiently definite notice of what conduct is proscribed.  A charging officer would have to decide whether or not to arrest a parent based upon whether the officer felt the parent’s actions were privileged as discipline or amounted to battery.  Law enforcement officers are constantly required to exercise individual judgment about the crimes with which to charge a defendant, and Assistant State Attorneys routinely exercise additional judgment in making filing decisions.  These decisions are based upon a determination that the facts and circumstances of a given scenario meet statutory requirements.

We also find that there exists a factual question as to whether the defendant’s conduct involved discipline (i.e., whether the “parental privilege” applies) which is a question of fact and normally one for a jury to decide.  It is therefore,

ORDERED AND ADJUDGED that the trial court’s order denying the defendant’s Motion to Dismiss is affirmed.

            DONE AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida this 4th day of January, 2001.


Circuit Judge
Primary Appellate Judge


Circuit Judge


Circuit Judge


Copies furnished to:

The Honorable Robert J. Morris, Jr.

Joy K. Goodyear, Esq.
Assistant Public Defender
14250 49th Street North
Clearwater, FL 33762

Christopher M. DeCarlo, Esq.
Assistant State Attorney
P.O. Box 5028
Clearwater, Florida 33758