“All Trespassers Will Be Shot!”

If someone other than a police officer tries to unlawfully and forcefully enter a person’s vehicle to “search” it before certain property is pawned while the person is still inside of that vehicle, then pursuant to Florida Statute, 776.013 (The Stand Your Ground law) the person can use deadly force to prevent this “search,” and pursuant to Florida Statute, 776.032 this same person can receive immunity from prosecution for using that deadly force.

The Stand Your Ground law has been around for six years now, but there is still some confusion as to its application to real life situations. For instance, the Stand Your Ground law does not mean that signs that read: "All Trespassers Will Be Shot", is now lawful to carry out. Just because someone happens to walk or cut across the yard or land where your dwelling is located, does not now mean that you can stand on your porch and start picking them off like metal ducks in a carnival game. And it’s also not true that you have to at least wait until they knock on your door before you can start picking them off. But it’s probably not as effective to have a sign that reads: "Some Trespassers May Be Shot, Depending Upon The Circumstances Of The Trespass, And My Aim."

So who can be shot, and when can you shoot them? And is there ever any truth at all to the signs that read, "All Trespassers Will Be Shot"?

Basically, you are allowed to open fire on anyone who is unlawfully and forcibly trying to enter your dwelling. The definition of dwelling found in Florida Statute 776.013(5)a includes any attached porch, but does not include the curtilage thereof. Florida Statute, 776.032 grants immunity to anyone who adheres to Florida Statute, 776.013, which means immunity is granted to anyone who shoots a person who is unlawfully and forcibly trying to enter a dwelling, which includes the attached porch of the dwelling, but not the curtilage thereof. And this would seem to mean that even if the yard and or land around the dwelling is fenced in or has some form of an enclosure that unless a person is unlawfully and forcibly entering the dwelling or the attached porch, a person will not be granted immunity if they start shooting. But Florida Statute 776.013(3) also allows a person to shoot anyone who is committing a forcible felony, and Florida statute, 776.08 defines burglary as a forcible felony. And Florida statute 810.011(2) defines dwelling for the purposes of a burglary as including any “attached porch…together with the curtilage thereof.” And finally, curtilage has been defined to include any land surrounding the dwelling that has some form of an enclosure around it.118

So what all this seems to mean is that if a person is lawfully at a dwelling which is surrounded by land that is fenced in or has some form of an enclosure, and people start walking or cutting across the enclosed land with the intent to commit an offense therein other than trespass, then any person lawfully at the dwelling can in fact stand on the porch and start picking these people off like metal ducks in a carnival game. Thus, in certain instances a sign that reads: All Trespassers Will Be Shot,” is arguably legally acceptable, and not so mythical.  Not that this open range shooting should be in any way advocated, especially if the person walking on and or cutting through the enclosed land has no intent to commit an offense therein besides trespass.  In which case you’ve just shot a mere trespasser, and that is not allowed.


“Ignorance of the law is never an excuse.”

Perhaps the most often used, overused, and annoying statement in the law is: “Ignorance of the law is no excuse.”131 But this doesn’t mean like some people mythically believe, that Ignorance of the law is never an excuse.  Ignorance of the law won’t excuse the trespasser who continues to trespass after a year, or the person who wrongfully shoots the trespasser. Nor will ignorance of the Lost and Found Law help the person who pawns the property he found on the beach. Ignorance of the law is usually not considered an excuse because the publication of state laws and statutes imputes constructive notice of those laws and the consequences of not following them to everyone.132

However, there are some laws where more notice than just hiding them somewhere in the endless pages of statutes we are all miraculously presumed to have memorized must be given.  For instance, registration laws punish a failure to act, i.e. a failure to register. And Due Process demands that before punishing people for failing to act they must first know what actions are required of them.  So if a person claims to have no knowledge that the law requires a duty to register in certain situations, then the person can claim ignorance of the law as a defense.133. However, the defense will most likely not be successful if the state can offer probable proof that the person who failed to register did have actual knowledge of the duty to register.134.

The myth that ignorance of the law is never an excuse has been debunked. But for the most part ignorance of the law is still no excuse. The good news is that it is also no excuse for the police.135The police cannot unlawfully search a locked glove compartment or trunk, or unlawfully stop a person for running a stop sign or red light, and then claim that ignorance of the law made the officers think those searches and stops were lawful.  Only good faith,136can sometimes unfortunately save the police from their ignorance of the law. The Appellate court can sometimes save the trial judge from his or ignorance of the law in thinking he or she has no discretion to withhold adjudication of guilt in certain cases.137 A 3.850 sometimes saves the defendant whose attorney’s ignorance of the law contributed to the Defendant’s conviction.138But for the Defendant, when ignorance of the law is no excuse, only Mistake of Fact,139Good Faith,140 and Claim of Right141may sometimes save the defendant from his or her ignorance of the facts as they are applied to the law, but not the law itself. 

Defenses that don't work

 

“THEY DIDN’T SPELL MY NAME RIGHT!”

Some people mythically believe that if their name is spelled wrong on their criminal citation for DUI then it doesn’t even matter whether they chose to refuse the field sobriety exercises or the breath test. Because spelling counts and their case must be dismissed. Or if it’s not a misspelling, it’s a wrong address, wrong make of vehicle, wrong tag number, wrong color of car, wrong date of birth, something’s wrong, etc…

The truth to this myth is that some mistakes or errors in a citation can make a difference. Most notably, when dealing with civil and criminal citations for careless driving and reckless driving. Just writing the words “careless driving” or “reckless driving” on the citation is not sufficient. The failure to explain what made the driving careless or reckless can result in a dismissal of the case.133

A mistake made in an Information can also cause a case to be dismissed if the mistake rises to the level of a fatal variance.134 Some examples of fatal variances in an Information are, incorrect name of the victim,135 incorrect age of the defendant,136 wrong name of the owner of the property broken into or stolen,137 and wrong date of offense.138 The mistakes in an Information have to be addressed with a motion to dismiss or a motion for a Judgment of acquittal or they may be deemed waived.139 An Information may be amended at any time by the state as long as the time of the amendment does not cause prejudice to the defendant.140

Spelling doesn’t necessarily count, but it can sometimes make a difference. So though most mistakes in a citation or an Information are not fatal to the state’s cause, sometimes they are. Which is why there is some truth to this myth.

CONCLUSION

 






118 Dukes v. State, 796 So.2d 1265 (Fla.4TH DCA  2001); Small v. State, 710 So.2d 591(Fla. 4th DCA 1998); Chambers v. State, 700 So.2d 441 (Fla. 4th DCA 1997); State v. Hamilton, 660 So.2d 1038 (Fla.1995)

131 Shelvin-Carpenter Co. v. Minnesota, 218 U.S. 57(US. Sct. 1910) (This cases says: …ignorance of law will not excuse.

132 State v. Floyd, 707 So.2d 833(Fla. 1st DCA 1998)

133 State v. Giorgetti, 868 So. 2d 512(Fla. 2004); U.S. v. Mancuso, 420 F.2d 556 (United States Court of Appeals, Second Circuit, 1970); Lambert v. People of the State of California, 355 U.S. 937, 78 S.Ct. 240, 2 L.Ed.2d 228 (U.S. S.Ct. 1958)

134 U.S. v. Mancuso, 420 F.2d 556 (United States Court of Appeals, Second Circuit, 1970)

135 Hilton v. State, 961 So.2d 284(Fla. 2007)

136 State v. Harris, 50 So.3d 408(Fla. 1st DCA 2011); Zaccardo vs. State, 723 So.2d 362 (5th DCA 1998); State v. Smith, 584 So.2d 145(Fla. 2nd DCA 1991)

137 Vicaria v. State, 743 So.2d 644(Fla. 1st DCA 1999)

138 Owens v. State, 866 So.2d 129(Fla. 5th DCA 2004)

139 Bedoya v. State, 634 So.2d 203(Fla. 3rdDCA 1994); In Interest of B.P., 610 So.2d 625 (Fla. 1stDCA 1992)

140 Chalmers v. State, 789 So.2d 1057(Fla. 4th DCA 2001)

141 T.D.W. v. State, 42 So.3d 959(Fla. 4thDCA 2010); Owens v. State, 866 So.2d 129 (Fla. 5th DCA 2004); Chalmers v. State, 789 So.2d 1057(Fla. 4th DCA 2001); Bartlett v. State, 765 So.2d 799(Fla. 1st DCA 2000)