IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL
CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
STATE OF
Appellant,
v. Appeal No. CRC 06-54 APANO
UCN522006AP00054XXXXCR
LOC THANH LAM
Appellee.
_____________________________/
Opinion filed __________________.
Appeal from a decision of the
Honorable Patrick K. Caddell
Pinellas
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 (
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
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
_______________________
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