COUNTY CRIMINAL COURT: CRIMINAL PROCEDURE – Dismissal – Order of dismissal was improper because the questions of “reasonable belief” and “amount of force necessary” under section 776.031 were jury questions even though the defendant claimed there were no disputes of fact about what occurred. Order of dismissal reversed. State v. Lam, No. CRC 06-54 AP, (Fla. 6th Cir.App.Ct. August 23, 2007).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL

CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

 

 

STATE OF FLORIDA

 

            Appellant,

 

v.                                                                     Appeal No. CRC 06-54 APANO

                                                                        UCN522006AP00054XXXXCR

LOC THANH LAM                          

 

            Appellee.

_____________________________/

 

Opinion filed __________________.

 

Appeal from a decision of the

Pinellas County Court

Honorable Patrick K. Caddell

Pinellas County Judge

 

Nathan T. Vonderheide, Esq.

Assistant State Attorney

 

Kimberly Nolen Hopkins, Esq.

Attorney for appellee

 

ORDER AND OPINION

 

            THIS MATTER is before the Court on the State’s appeal from a decision of the Pinellas County Court granting the defendant’s motion to dismiss. After reviewing the briefs and record, this Court reverses the decision of the trial court.

            The alleged victim in this case walked inside the defendant’s apartment while he slept and took certain important documents. The defendant forcibly retrieved the documents from the alleged victim and was charged with battery. Although the defendant admits using physical force on the alleged victim, he claims that the facts clearly establish the affirmative defense of “defense of property” pursuant to §776.031, Fla.Stat. (2006). That statute states in pertinent part:

                                                                                                                                                                                    A person is justified in the use of force, except deadly

                                    force, against another when and to the extent that the

                                    person reasonably believes that such conduct is necessary

                                    to prevent or terminate the other’s trespass on, or

                                    other tortious or criminal interference with, either

                                    real property other than a dwelling or personal

                                    property, lawfully in his or her possession or in the

                                    possession of another who is a member of his or her

                                    immediate family or household or of a person whose

                                    property he or she had a legal duty to protect.

 

 

            In the case of State v. Hull, 933 So.2d 1279 (Fla. 2d DCA 2006), the appellate court interpreted a “defense of others” statute, §776.012, Fla. Stat. (2003), that was very similar to the “defense of property” statute at issue in the case at bar. The statute interpreted in Hull provides in pertinent part that:

 

                                    A person is justified in the use of force, except deadly

                                    force, against another when and to the extent that the

                                    person reasonably believes that such conduct is

                                    necessary to defend himself or herself or another

                                    against such other’s imminent use of unlawful force.

 

Both statutes permit the use of force when a person reasonably believes that such force is necessary under the circumstances. But, as found by the court in Hull, even though the facts may be undisputed, the legal components of the affirmative defense present issues for the jury. The court found that the questions of “reasonable belief” and “the amount of force necessary” were factual determinations to be made by the jury. Hull at 1279. The Hull court reversed the trial court’s order granting the defendant’s motion to dismiss. Since the legal components of the affirmative defense addressed in Hull are present in the case at bar, this Court must similarly reverse the trial court’s order granting the defendant’s motion to dismiss.    

            IT IS THEREFORE ORDERED that the order granting the defendant’s motion to dismiss is reversed, and this case is remanded to the trial court for action consistent with this Order and Opinion.

            ORDERED at Clearwater, Florida this _____ day of August, 2007.

 

 

 

                                                                        _______________________

                                                                                    Linda R. Allan

                                                                                 Circuit Court Judge

 

 

 

                                                                        _______________________

                                                                                    R. Timothy Peters                              

                                                                                   Circuit Court Judge

 

 

 

                                                                        ________________________

                                                                                    John A. Schaefer

                                                                                  Circuit Court Judge

 

cc:        Office of the State Attorney

 

            Honorable Patrick K. Caddell

 

            Kimberly Nolen Hopkins, Esquire