IN THE CIRCUIT COURT FOR THE TENTH JUDICIAL CIRCUIT
IN AND FOR POLK COUNTY, STATE OF FLORIDA
STATE OF FLORIDA, Case No. 22-CF-XXXX
Plaintiff, Division F1
DEFENDANT’S MOTION TO DISMISS
COMES NOW, Defendant, XXXXX XXXXXXX, by and through the undersigned attorney, pursuant to Rule 3.190(b), Fla.R.Crim.P., and Fla. Stat. 776.032(1), 776.032(4), 776.012(1), and 776.012(2), and moves this Court for an Order declaring Defendant immune from prosecution and dismissing this matter. As grounds therefore, Defendant would show:
The events in this case occurred both on and off the property of XXXXXXXXX located at XXXXXXXXXXXXXXXXX Winter Haven, FL 33880.
Around noon on September 4, 2022, XXXXXXXXXX and XXXXXXXXXXX were in the area of XXXXXXXXXXX to canvass for the Ron DeSantis campaign. Both XXXXXXXX and XXXXXXXXX are employees of Blitz Canvassing, who was contracted by the DeSantis campaign.
XXXXXXXXXX parked the vehicle in which he and XXXXXXXXXX rode on the side of the road near 4214 Shadow Wood Dr. XXXXXXXXXX went to canvas at that address while XXXXXXXXXX went a few doors down to canvass there. XXXXXXXXXX entered XXXXXXXXXX’s property wearing a DeSantis hat, possessing DeSantis pamphlets in his hand, and his phone in his other hand. His phone contains an app that is used for canvassing. It contains the names of the registered voters at the residence, a script, and the ability to notate whether the property has been canvassed.
XXXXXXXXXX knocked on the door and XXXXXXXXXX answered the door. XXXXXXXXXX began to go through his script and asked whether XXXXXXXXXX’s wife and daughter were home. XXXXXXXXXX was not requested as his name and address are protected as law enforcement. XXXXXXXXXX, despite XXXXXXXXXX clearly being a canvasser, asked XXXXXXXXXX for what he wanted to speak with them.
XXXXXXXXXX began again to go through his script but XXXXXXXXXX then told him to “get the fuck out of my doorway.” XXXXXXXXXX began updating his app to show that this family wasn’t receptive to canvassing (for the benefit of future canvassers) and muttered to himself, “I’ll keep working.” The door was closed by XXXXXXXXXX.
Apparently, XXXXXXXXXX didn’t like what XXXXXXXXXX said and he reopened the door and asked XXXXXXXXXX, “What did you say?” and began following XXXXXXXXXX down the driveway. XXXXXXXXXX got so close to XXXXXXXXXX that he began to bump XXXXXXXXXX with his body. XXXXXXXXXX then made it off of XXXXXXXXXX’s property and got to his vehicle. He opened the car door. XXXXXXXXXX, was heading back towards the vehicle upon hearing the commotion.
XXXXXXXXXX then continued towards XXXXXXXXXX. XXXXXXXXXX could not leave as XXXXXXXXXX was not back in the vehicle. XXXXXXXXXX, fearing the imminent use of unlawful force by XXXXXXXXXX and to prevent great bodily harm to himself, then brandished a firearm he had stored in the vehicle. The firearm was never pointed at XXXXXXXXXX. It remained pointed towards the ground throughout the entire ordeal. The purpose of brandishing the firearm was not necessarily to instill fear into XXXXXXXXXX; it was simply to prevent future harm against XXXXXXXXXX. XXXXXXXXXX alleges that XXXXXXXXXX stated, “Hey, motherfucker. You going to change your attitude, aren’t you?” after brandishing the firearm.
Rule 3.190(b), Fla.R.Crim.P.
This Motion is authorized under Rule 3.190(b), Fla.R.Crim.P. It states: “All defenses available to a defendant by plea, other than not guilty, shall be made only by motion to dismiss the indictment or information, whether the same shall relate to matters of form, substance, former acquittal, former jeopardy, or any other defense.”
Defendant is raising the defense of immunity pursuant to Fla. Stat. 776.032 and 776.012. Dennis v. State, 51 So.3d 456 (Fla. 2010), held that “Florida Rule of Criminal Procedure 3.190(b)—rather than rule 3.190(c)(4)—provides the appropriate procedural vehicle for the consideration of a claim of section 776.032 immunity.”
Use of Force
Fla. Stat. 776.012(1) states: “A person is justified in using or threatening to use 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 the other’s imminent use of unlawful force. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.
Fla. Stat. 776.012(2) states: “A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.”
As such, the first issue to determine is XXXXXXXXXX’s actions rose to the level of an Aggravated Assault. If they did not, section 1 will apply. If they did, section 2 will apply.
Fla. Stat. 784.011 defines an Assault as “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” An Assault is “Aggravated” when it is done with a deadly weapon without an intent to kill. Fla. Stat. 784.021.
In this case, XXXXXXXXXX did not commit an Aggravated Assault. He simply brandished a firearm to let XXXXXXXXXX know that he was armed should XXXXXXXXXX continue to approach XXXXXXXXXX. By the time the firearm was displayed, XXXXXXXXXX was no longer on XXXXXXXXXX’s property and simply awaiting the arrival of his coworker so that they could leave. Even should the Court believe that XXXXXXXXXX stated, “Hey, motherfucker. You going to change your attitude, aren’t you?”, this is, at most, a conditional threat that harm could occur if XXXXXXXXXX continues his approach towards XXXXXXXXXX. A conditional threat to do injury at some unspecified future time based upon a possible eventuality does not constitute an assault. Butler v. State, 632 So.2d 684 (Fla. 5th DCA 1994).
More specifically, the conditional nature of the threat goes to whether XXXXXXXXXX had a well-founded fear that violence was imminent. Blanton v. State, 388 So.2d 1271 (Fla. 4th DCA 1980). In Blanton, the conviction was upheld because Blanton had a shotgun pointed at law enforcement officers and threatened to shoot them if they did not leave his property. They would have been shot if they did nothing.
In contrast, XXXXXXXXXX’s “threat”, if you want to call it that, was, in a light most favorable to the State, “I will shoot you if you continue to come towards me in an attacking manner when I am at my car and off of your property.” There was no threat of imminent violence unless XXXXXXXXXX continued with his aggressive behavior towards XXXXXXXXXX.
As such, since XXXXXXXXXX did not use a threat of deadly force, section 1 of Fla. Stat. 776.012 should apply. However, even if the Court were to believe that XXXXXXXXXX used a threat of deadly force, section 2 of Fla. Stat. 776.012 applies and XXXXXXXXXX is still immune from prosecution as his action was necessary to prevent great bodily harm to himself.
Additionally, whether a defendant believes that such force is necessary is to be judged under an objective standard, i.e., the reasonable man. Florida has long held that the “reasonable man” standard applies to self-defense. In other words, would “a reasonably cautious man would entertain the same belief from the same appearances.” See Lane v. State, 32 So. 896, 898 (Fla. 1902).
An objective standard is applied to determine whether the immunity provided by these provisions attaches. See Montanez v. State, 24 So.3d 799, 803 (Fla. 2d DCA 2010) (confirming that in determining whether the immunity accorded by section 776.032 attaches, “the objective, reasonable person standard by which claims of justifiable use of deadly force are measured” should be applied). That standard requires the court to determine whether, based on circumstances as they appeared to the defendant when he or she acted, a reasonable and prudent person situated in the same circumstances and knowing what the defendant knew would have used the same force as did the defendant. See Toledo v. State, 452 So.2d 661, 663 (Fla. 3d DCA 1984) (“[A] person in the exercise of his right of self-defense may use ‘only such force as a reasonable person, situated as he was and knowing what he knew, would have used under like circumstances.’ ” (quoting People v. Moody, 62 Cal.App.2d 18, 143 P.2d 978, 980 (1943))); see also Chaffin v. State, 121 So.3d 608 (Fla. 4th DCA 2013) (confirming that the standard to be applied for determining whether a person is justified in using deadly force in self-defense is not a subjective standard as to the defendant’s state of mind, but an objective standard as to a reasonably prudent person’s state of mind); Price v. Gray’s Guard Service, Inc., 298 So.2d 461, 464 (Fla. 1st DCA 1974) (“The conduct of a person acting in self-defense is measured by an objective standard, but the standard must be applied to the facts and circumstances as they appeared at the time of the altercation to the one acting in self-defense.”). Mobley v. State, 132 So. 3d 1160, 1164-65 (Fla. 3d DCA 2014), reh’g denied (Mar. 13, 2014), review denied, 147 So. 3d 527 (Fla. 2014).
An objective reasonable person, with an attacker approaching him or her, making verbal threats and who has already made physical contact with him or her, would have acted in self-defense, including the display of a firearm.
The facts alleged prove a prima facie case of entitlement to statutory immunity under Fla. Stat. 776.032(1), 776.032(4) and 776.012(1) or 776.012(2). As such, it is the State’s burden to prove by clear and convincing evidence that Michael XXXXXXXXXX is not entitled to immunity and the dismissal of the charges against him.
As an initial matter, should the Court find that XXXXXXXXXX did not even commit an assault, the charges should be dismissed in any event (see discussion above). If the Court is of the opinion that a misdemeanor offense occurred (simply assault, improper display of a firearm, etc.), then the Court should apply Fla. Stat. 776.012(1) and dismiss the charge against XXXXXXXXXX. Lastly, should the Court believe there is enough evidence to submit to a jury that XXXXXXXXXX committed an Aggravated Assault as charged, the Court should dismiss under Fla. Stat. 776.012(2).
While, of course, there will be factual disputes for this Court to resolve, this discussion will primarily focus on the conduct as a matter of law. Specifically, whether it was objectively reasonable for XXXXXXXXXX to believe his conduct was necessary to prevent the imminent use of unlawful force, including the possibility of great bodily harm, against his person.
This does not require a long discussion. XXXXXXXXXX was aggressive with XXXXXXXXXX from the moment he opened his door. He was vitriolic in telling XXXXXXXXXX to leave his property. XXXXXXXXXX was complying with that request. XXXXXXXXXX did not like that XXXXXXXXXX was taking his time in updating the app before leaving. XXXXXXXXXX did not like that XXXXXXXXXX had said that he was going to continue working the neighborhood. XXXXXXXXXX physically had made contact with XXXXXXXXXX as he was leaving the property. XXXXXXXXXX did not respond in that moment. He made it to his vehicle. XXXXXXXXXX continued to approach him in an aggressive manner. At this point, XXXXXXXXXX had removed himself from the situation as much as he could.
At this point, he, and an objectively reasonable person, would know that a battery against his person was imminent. The harder issue is whether it would be reasonable to assume that a simple battery could turn into one that could cause him great bodily harm.
“Great bodily harm” has generally been defined by what it is not. It has been defined as great as distinguished from slight, trivial, minor or moderate harm, and as such does not include mere bruises as are likely to be inflicted in a simple assault. Smith v. State, 175 So.3d 906 (Fla. 4th DCA 2015). One court went so far as to hold that a stabbing with a fork did not result in great bodily harm and reduced the conviction from aggravated battery to simple battery. C.A.C. v. State, 771 So. 2d 1261 (Fla. 2d DCA 2000).
It is impossible to know what was in the head of XXXXXXXXXX as he was approaching XXXXXXXXXX. We will never know whether a simple battery would have actually turned into aggravated battery. But we do know that, based upon XXXXXXXXXX’s conduct during the encounter, he was enraged. In this state, it is objectively reasonable for XXXXXXXXXX to presume that XXXXXXXXXX would not have abated his conduct at a simple battery. As such, XXXXXXXXXX’s display of a firearm was a reasonable use of force to repel the impending attack by XXXXXXXXXX.
Lastly, there is an issue whether an aggravated assault is a threat of deadly force for purposes of determining which self-defense statute to apply. Because an aggravated assault could be committed in any number of manners, it should be determined whether any aggravated assault is the use or threatened use of deadly force on a case-by-case basis. To date, only the actual discharge of a firearm has been held, as a matter of law, to constitute the threatened or actual use of deadly force. “It is the discharge of the firearm that makes it deadly force as a matter of law. “[O]nly the discharge of a firearm has been held to be deadly force as a matter of law.” Hosnedl v. State, 126 So.3d 400 (Fla. 4th DCA 2013) quoting Howard v. State, 698 So.2d 923 (Fla. 4th DCA 1997). Other courts have held that the mere display of a gun is not deadly force as a matter of law. Cunningham v. State, 159 So.3d 275 (Fla. 4th DCA 2015).
One court somewhat approached this issue but in the context of ineffective assistance of counsel. In Little v. State, 302 So.3d 396 (Fla. 4th DCA 2020), the defendant pointed a firearm at a person who was testing his vehicle’s car handle (presumably to see if it was unlocked). He then ordered the person to the ground and called the police. The court held that it was not ineffective assistance of counsel for Little’s attorney to fail to argue justifiable use of non-deadly force because it was clear that by pointing his firearm at the alleged victim it was clearly a threat of deadly force.
So, we know that pointing a firearm at a person and the discharge of a firearm is the threatened use of deadly force. What we have in this case is a firearm that was merely displayed. It was never pointed at XXXXXXXXXX. XXXXXXXXXX never directly threatened to shoot XXXXXXXXXX. Any perceived threat was conditional at best. Under the specific facts of this case, XXXXXXXXXX’s use of force, if any, should be deemed the non-deadly use of force.
As such, XXXXXXXXXX was not required to believe that great bodily harm was about to be committed upon him. In order for his use of force to be justified, it only has to be reasonable for him to believe that the use of unlawful use was imminent against him.
WHEREFORE, the Defendant respectfully requests this Court to hold that he is entitled to immunity for his actions relative to this case and that the charge of Aggravated Assault be dismissed.
I HEREBY CERTIFY that a true and correct copy of this Motion was furnished by e-service to the Office of the State Attorney on this 21st day of December 2022.
VALRICO LAW GROUP
_/s/ Adam L. Bantner, II__
Fla. Bar No. 0030038
3626 Erindale Drive
Valrico, FL 33596
Attorneys for Defendant