Buchanan v. State, 5D05-1797.
| Decision Date | 28 April 2006 |
| Docket Number | No. 5D05-1797.,5D05-1797. |
| Citation | 927 So.2d 209 |
| Parties | Daniel Eugene BUCHANAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
William J. Sheppard and D. Gray Thomas of Sheppard, White, Thomas Kachergus, P.A., Jacksonville, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan Assistant Attorney General, Daytona Beach, for Appellee.
Daniel Buchanan (defendant) appeals his judgment and sentence which were entered by the trial court after a jury found him guilty of committing the crime of aggravated battery with a firearm. Concluding that the trial court erred in restricting the defendant to six peremptory challenges during jury selection, we reverse.
The defendant was charged with committing the offense of aggravated battery with a firearm in violation of section 784.045 of the Florida Statutes. The information was later amended to specifically allege that, as a result of the defendant's discharge of a firearm, great bodily harm was inflicted upon the victim, thus enabling the State to apply Florida's 10-20-Life sentencing enhancement statute, as set forth in section 775.087 of the Florida Statutes.
The evidence at trial demonstrated that the defendant is a bail bondsman and the victim, Kevin Brinson, was one of the defendant's clients who had jumped bail. The evidence revealed that as Buchanan was attempting to apprehend Brinson, Brinson attempted to exit a car by climbing over the driver's seat, at which time Buchanan shot Brinson in the buttocks, severely injuring him.
The jury found the defendant guilty as charged. The trial court thereafter entered judgment in accordance with the jury's verdict and sentenced the defendant to a mandatory minimum term of 25 years' imprisonment pursuant to Florida's 10-20-Life statute.
In challenging his conviction, the defendant first argues that the trial court erred in denying his pre-trial motion to dismiss. He argued below that dismissal was warranted because, as a matter of law, he was privileged to shoot Brinson since, as a bail bondsman, he possessed a common law privilege to "use whatever means necessary to affect the surrender" of Brinson. He further argued that, in addition to the common law privilege, the Florida Statutes authorized him to use any force which he deemed reasonable to apprehend Brinson, citing to section 776.07 of the Florida Statutes (2005) to support this claim. The statute reads, in pertinent part:
776.07. Use of force to prevent escape
(1) A law enforcement officer or other person who has an arrested person in his or her custody is justified in the use of any force which he or she reasonably believes to be necessary to prevent the escape of the arrested person from custody.
§ 776.07(1), Fla. Stat. (2005). The trial court properly rejected both arguments as meritless.
First, as the trial court aptly noted, there is no case law in Florida which supports the defendant's contention that, as a matter of law, bail bondsmen possess a common law privilege to use whatever force necessary, including deadly force, to effect the surrender of a person who has jumped bail. In Register v. Barton, 75 So.2d 187 (Fla.1954), our Supreme Court generally recognized the principle that a person "under bail is in the vicarious custody of his bondsman whose `dominion is a continuance of the original imprisonment,' and the principal may be apprehended by his bondsman even under extreme circumstances." However, the Register court did not speak to the issue of what level of force a bail bondsman is entitled to use in an effort to capture a fugitive.
Having found no Florida case law which supports the defendant's claim of unfettered privilege to use deadly force when seeking to capture a fugitive, we conclude the trial court properly ruled that dismissal of the instant information was not warranted on said basis. See generally Bennett v. State, 169 Ga.App. 85, 311 S.E.2d 513 (1983)( that bail bondsman may not shoot accused to prevent his escape by flight, but he may, to overcome declared, open, and armed resistance to execution of warrant, use such force as may be reasonably necessary to effect the arrest). See also Commonwealth v. Cabral, 443 Mass. 171, 819 N.E.2d 951 (2005)( that surety's authority is to use only that force that an ordinary, prudent, and intelligent person with the surety's knowledge would have believed necessary in the circumstances to capture and surrender the principal); State v. Haskins, 160 N.C.App. 349, 585 S.E.2d 766 (2003)( that a surety can use reasonable force in apprehending a fugitive).
Next, as for the defendant's claim that application of the provisions of section 776.07(1) of the Florida Statutes warranted the pre-trial dismissal of the instant information, the trial court properly rejected this claim as well. During the hearing on the defendant's dismissal motion, the State advised the trial court that it was prepared to present evidence indicating that the shooting of Brinson by the defendant was in retaliation for Brinson's repeated refusal to surrender. Based on this information, the court properly recognized that dismissal was not warranted because a jury question existed.
In a related claim, the defendant argues that the trial court erred in denying his request for a special jury instruction regarding his justification defense, asserting that his requested instruction should have been given because it contained a proper statement of the law and was supported by the evidence. We disagree.
A trial court has wide discretion in instructing the jury, and the court's decision regarding the charge to the jury is reviewed with a presumption of correctness on appeal. Carpenter v. State, 785 So.2d 1182 (Fla.2001). In order to be entitled to receive a special jury instruction, the defendant must prove:
(1) the special instruction was supported by the evidence; (2) the standard instruction did not adequately cover the theory of defense; and (3) the special instruction was a correct statement of the law and not misleading or confusing.
Stephens v. State, 787 So.2d 747, 756 (Fla.2001)(footnotes omitted).
Here, the defendant requested that the trial court issue the following special instruction to the jury:
A duly licensed bail bondsman need not retreat from or stop efforts to make surrender of a bailee because of resistance or threatened resistance to the surrender or detention. The bail bondsman is justified in the use of any force that he reasonably believes necessary [to] defend himself or another from bodily harm while making surrender. That force is justifiable when necessary in surrendering a bailee on his bond.
This language closely tracks the language set forth in section 776.05 of the Florida Statutes. That statute reads:
776.05. Law enforcement officers; use of force in making an arrest
A law enforcement officer, or any person whom the officer has summoned or directed to assist him or her, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. The officer is justified in the use of any force:
(1) Which he or she reasonably believes to be necessary to defend himself or herself or another from bodily harm while making the arrest;
(2) When necessarily committed in retaking felons who have escaped.
§ 776.05, Fla. Stat. (2005).
However, section 776.05 did not apply to the facts presented in this case since the defendant was neither a law enforcement officer nor a person whom the officer had summoned or directed to provide assistance. Accordingly, the trial court did not abuse its discretion in refusing to instruct the jury based upon this inapplicable statute.
The defendant next argues that the trial court erred in restricting him to only six peremptory challenges during jury selection when he was legally entitled to receive ten peremptory challenges. We agree.
As noted above, the defendant was charged with committing the offense of aggravated battery with a firearm, in violation of section 784.045 of the Florida Statutes. Section 784.045 defines the offense as being a second degree felony.
Pursuant to rule 3.350 of the Florida Rules of Criminal Procedure, defendants who are charged with committing second degree felonies are generally entitled to receive only six peremptory challenges during jury selection, while ten peremptory challenges are afforded to defendants facing charges punishable by death or imprisonment for life:
Rule 3.350. Peremptory Challenges
(a) Number. Each party shall be allowed the following number of peremptory challenges:
(1) Felonies Punishable by Death or Imprisonment for Life. Ten, if the offense charged is punishable by death or imprisonment for life.
(2) All Other Felonies. Six, if the offense charged is a felony not punishable by death or imprisonment for life.
(3) Misdemeanors. Three, if the offense charged is a misdemeanor.
Fla. R.Crim. P. 3.350. Section 913.08 of the Florida Statutes (2005) is in accord:
913.08. Number of peremptory challenges
(1) The state and the defendant shall each be allowed the following number of peremptory challenges:
(a) Ten, if the offense charged is punishable by death or imprisonment for life;
(b) Six, if the offense charged is punishable by imprisonment for more than 12 months but is not punishable by death or imprisonment for life;
(c) Three, for all other offenses....
§ 913.08(1), Fla. Stat. (2005).
In this case, confusion arose concerning the proper number of peremptory challenges available to the defendant because the information which was filed against the defendant alleged additional facts that enabled the State to seek application of the sentencing enhancement provisions of Florida's "10-20-Life" statute. Specifically, the information averred that the defendant discharged a firearm and, as a result of said discharge, great bodily harm was...
To continue reading
Request your trial
-
Florida Dcfs v. P.E.
... ... v. State Department of Children & Family Services, 976 So.2d 41 (Fla. 3d DCA 2008), and R.H. v. Department ... ...
-
LaVALLEY v. State
...isolation. If any offense charged is punishable by life, then the number of peremptory challenges is increased to ten. Buchanan v. State, 927 So.2d 209 (Fla. 5th DCA 2006), relied upon by Appellant, does not hold to the contrary. There, the defendant was charged with a single offense that s......
-
Lavalley v. State, Case No. 5D08-3240 (Fla. App. 12/18/2009)
...If any offense charged is punishable by life, then the number of peremptory challenges is increased to ten. Buchanan v. State, 927 So. 2d 209 (Fla. 5th DCA 2006), relied upon by Appellant, does not hold to the contrary. There, the defendant was charged with a single offense that subjected h......
-
Pretrial motions and defenses
...under §776.05 relating to a law enforcement officer’s use of force in detaining a person he is trying to arrest. Buchanan v. State, 927 So. 2d 209 (Fla. 5th DCA 2006) To establish the defense of duress, the defendant must show (1) the defendant reasonably believed that a danger or emergency......