Love v. State, 83-1213

• Decision Date: 09 May 1984
• Docket Number: No. 83-1213,83-1213
• Citation: 450 So.2d 1191
• Parties: Ruby Lee LOVE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1191

450 So.2d 1191

Ruby Lee LOVE, Appellant, v. STATE of Florida, Appellee.

No. 83-1213.

District Court of Appeal of Florida Fourth District.

May 9, 1984.

Rehearing Denied June 27, 1984.

Stephen D. Jerome, Lighthouse Point, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Bruce M. Lee, Asst. Atty. Gen., West Palm Beach, for appellee.

BERANEK, Judge.

This is a rather bizarre case presenting the issue of whether or not the battery statutes of Florida protect an unborn fetus.

On June 5, 1982, Linda Whiteside was shot by the defendant. At the time of the shooting, the victim was seven and one-half months pregnant. The bullet struck her in the lower abdomen and entered the head of the fetus in her womb. Doctors were successful in saving the life of the mother and the fetus. The fetus was removed from the mother's body with the bullet still lodged in its head. Approximately two months after the birth by cesarian section, the bullet was removed. The defendant was charged with attempted second degree murder of Linda Whiteside, aggravated battery against Linda Whiteside, aggravated battery against an unborn male fetus, and the use of a firearm during the commission of the felony. The trial occurred approximately ten months after the shooting and the baby, alive and apparently physically well, was present in the courtroom. The defendant was convicted of attempted manslaughter of the mother, two counts of aggravated battery, and possession of a firearm while engaged in a criminal offense. She was sentenced to fifteen years on each battery count. The defendant's appeal relates to the offense of battery on an unborn fetus.

We start with the assumption that the facts presented in the instant case certainly should constitute a crime in this State. Obviously, Florida should prohibit all non-consensual violent acts against the mother of an unborn child which result in injury to the fetus. The question here is simply whether the Florida Legislature did specifically proscribe this conduct within the confines of the battery statutes. Section 784.045, Florida Statutes (1981), defines aggravated battery:

784.045 Aggravated battery

(1) A person commits aggravated battery who, in committing battery:

(a) Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or

(b) Uses a deadly weapon.

(2) Whoever commits aggravated battery shall be guilty of a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084.

This statute refers to the general battery statute in its definition. Battery is defined in Section 784.03, Florida Statutes (1981):

784.03 Battery

(1) A person commits battery if he:

(a) Actually and intentionally touches or strikes another person against the will of the other; or

(b) Intentionally causes bodily harm to an individual.

(2) Whoever commits battery shall be guilty of a misdemeanor of the first degree, punishable as provided in § 775.082, § 775.083, or § 775.084.

Appellant contends that the victim of a battery must be a "person" and that an unborn fetus is not a person within the battery statute. The word "person" is defined in Section 1.01, Florida Statutes (1981), and nowhere are the unborn included despite the fact that "children" are mentioned.

1.01 Definitions

In construing these statutes and each and every word, phrase, or part hereof, where the context will permit:

(1) The singular includes the plural and vice versa.

(2) The masculine includes the feminine and neuter and vice versa.

(3) The word "person" includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations and all other groups or combinations.

In construing this statute and its applicability to an unborn fetus, we are directed by the legislative rules of construction found in Section 775.021, Florida Statutes (1981), which provide:

775.021 Rules of construction

(1) The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.

Viewing the battery statute "most favorably to the accused," we initially conclude on the basis of this brief statutory review that the omission of a "fetus" from the battery statute, and from the definition statute, constitutes an indication that the Legislature did not intend to include a fetus within the statutory protection.

This position is also supported by resort to Section 782.09, Florida Statutes (1981), which provides as follows:

782.09 Killing of unborn child by injury to mother

The willful killing of an unborn quick child, by any injury to the mother of such child which would be murder if it resulted in the death of such mother, shall be deemed manslaughter, a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084.

This statute specifically deals with an unborn quick child. The inclusion of this language is an obvious indication that the Legislature was mindful of protecting the unborn but only under the specific circumstances set out in the statute. It is noteworthy that even this statute does not make it a crime to willfully kill an unborn quick child by an act against the mother unless that act would have been murder had the mother died. Since the jury in the case at bar concluded that the defendant was not...