WHITFIELD v. STATE (2024)

On Motion for Written Opinion and En Banc Rehearing

The court denies the motion for written opinion and en banc rehearing docketed May 07, 2024.

The court correctly denies the defendant's motion for written opinion and for rehearing en banc. My concern is with the defendant's legal argument in support of his motion. He contends he was entitled to self-defense immunity under sections 776.013(2) and 776.032, Florida Statutes. His manslaughter conviction stemmed from his shooting and killing someone after they ostensibly attacked his friends and him as they sat in their car. He contends he was immune from criminal prosecution—something we should have done something about on appeal, he says—based on these statutes, and now we should provide a few words of explanation for our affirmance of his conviction and sentence.

His argument for immunity is misplaced. To be immune from prosecution, a defendant must have used or threatened to use force “as permitted in s. 776.012, s. 776.013, or s. 776.031.” § 776.032(1), Fla. Stat. The only authorization of force in section 776.013 (the only statute on which the defendant appears to rely) is in subsection one, which provides the following:

A person who is in a dwelling or residence in which the person has a right to be has no duty to retreat and has the right to stand his or her ground and use or threaten to use [nondeadly force in some specified circumstances] and [deadly force in some specified circumstances].

§ 776.013(1), Fla. Stat. (emphasis supplied). The statute defines “dwelling” to mean

a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

Id. (5)(a) (emphasis supplied).

The highlighted text in subsection one shows that the authorization of force under this statute, in turn supporting immunity, is limited in application to someone who uses force while in either a dwelling or residence. The second highlighted text uses a relative clause (beginning with “which”) and a participial phrase (beginning with “limited,” following the linking verb “is,” and serving as a subject complement) to modify “building or conveyance,” meaning for a vehicle to satisfy the definition of “dwelling” and allow an occupant to take advantage of immunity, it must be one with both a roof and a design allowing people to lodge there for the night. The other subsections (two through four) speak to presumptions that could apply with respect to the authorization set out in subsection one; none of those other subsections provide additional authorization, beyond what has been spelled out in that first subsection.^*

The car in which the defendant found himself at the time of the shooting was a BMW sitting in a public location—the ultimate driving machine to be sure, but clearly not one that met the definition of “dwelling.” The defendant simply did not qualify for immunity under section 776.013(1) because of where he indisputably was when he shot and killed someone. The cases he cites to suggest conflict—Bartlett v. State, 993 So. 2d 157 (Fla. 1st DCA 2008), and State v. Heckman, 993 So. 2d 1004 (Fla. 2d DCA 2007)—do not hold to the contrary.

FOOTNOTES

FOOTNOTE.   In these subsections, the statute does make several references to an “occupied vehicle” in connection with the presumption. The statute defines “vehicle”—circularly, it seems—as “a conveyance of any kind, whether or not motorized, which is designed to transport people or property.” Id. (5)(c). The appearance of “vehicle” in subsections two through five, but not subsection one, nevertheless indicates that the word's definition does not expand the scope of the authorization in subsection one. Rather, an “occupied vehicle” can expand the geographic scope of the conduct, perpetrated by the person against whom force is used, that can give rise to the authorization, provided the defendant still uses the force while in a “dwelling or residence.”

Per Curiam.

Osterhaus, C.J., and Lewis, J., concur; Tanenbaum, J., concurs with opinion.