CATHERINE M. PILEGGI v. STATE OF FLORIDA ( 2017 )


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  •        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    CATHERINE M. PILEGGI,
    Appellant,
    v.
    STATE OF FLORIDA,
    Appellee.
    No. 4D15-2780
    [November 8, 2017]
    Appeal and cross-appeal from the Circuit Court for the Seventeenth
    Judicial Circuit, Broward County; John D. Fry, Judge; L.T. Case No. 11-
    11540CF10A.
    Bruce L. Udolf of Bruce L. Udolf, PA, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy,
    Assistant Attorney General, West Palm Beach, for appellee.
    DAMOORGIAN, J.
    Catherine Pileggi (“Defendant”) appeals her judgment of conviction for
    second degree murder. Defendant raises two arguments on appeal: (1) the
    trial court erred in denying her motion for judgment of acquittal; and (2)
    she was denied due process by not being given the opportunity to perform
    an independent autopsy. The State cross-appeals, arguing that in the
    event of reversal, the court improperly denied the State’s request to limit
    the jury instruction on the justifiable use of deadly force. We affirm
    Defendant’s conviction without further comment. Recognizing that our
    decision on Defendant’s appeal renders the State’s cross-appeal moot, we
    nonetheless address the State’s contention that the justifiable use of
    deadly force instruction as given was wrong.
    Defendant was charged with the murder of her longtime boyfriend. At
    trial, Defendant admitted that she shot and stabbed the Victim, but
    claimed that she was a battered woman and did so in self-defense. Both
    sides presented substantial evidence to support their respective positions.
    Because self-defense was an issue, when it came time to charge the jury,
    the court read the following instruction which was modeled after Standard
    Jury Instruction 3.6(f):
    An issue in this case is whether the defendant acted in self-
    defense.
    It is a defense to the crime of murder in the second degree and
    to the lesser included crime of manslaughter if the actions of
    [Defendant] constituted the justifiable use of deadly force.
    Deadly force means force likely to cause death or great bodily
    harm.
    The use of deadly force is justifiable if the defendant
    reasonably believed that such force is necessary to prevent
    imminent death or great bodily harm to her while resisting:
    1) Another’s attempt to murder her; or
    2) Any attempt to commit manslaughter or aggravated
    assault upon her; or
    3) Any attempt to commit manslaughter or aggravated
    assault upon or in any dwelling occupied by her.
    [Defendant] was justified in using deadly force if she
    reasonably believed that such force was necessary to prevent
    imminent death or great bodily harm to herself or the
    imminent commission of a forcible felony such as first degree
    murder or second degree murder or manslaughter against
    her.
    If [Defendant] was not otherwise engaged in unlawful activity
    and was in a place she had a right to be, then she had no duty
    to retreat and had the right to stand her ground.
    This instruction was based, in part, on the wording of section 782.02
    of the Florida Statutes which provides that:
    The use of deadly force is justifiable when a person is resisting
    any attempt to murder such person or to commit any felony
    upon him or her or upon or in any dwelling house in which
    such person shall be.
    2
    § 782.02, Fla. Stat. (2010).
    It was also based, in part, on the “Stand Your Ground” law. As it read
    in 2010, section 776.012 of Florida’s Stand Your Ground law stated, in
    pertinent part:
    [A] person is justified in the use of deadly force and does not
    have a duty to retreat if:
    (1) He or she reasonably believes that such force is
    necessary to prevent imminent death or great bodily
    harm to himself or herself or another to prevent the
    imminent commission of a forcible felony; or
    (2) Under those circumstances permitted pursuant to s.
    776.013.
    § 776.012, Fla. Stat. (2010).
    To that end, section 776.013(3) of the Stand Your Ground law stated:
    A person who is not engaged in unlawful activity and who is
    attacked in any other place where he or she has a right to be
    has no duty to retreat and has the right to stand his or her
    ground and meet force with force, including deadly force if he
    or she reasonably believes it is necessary to do so to prevent
    death or great bodily harm to himself or herself or another or
    to prevent the commission of a forcible felony.
    § 776.013(3), Fla. Stat. (2010).
    The State does not dispute that the standard jury instruction given
    accurately tracks the language of section 782.02 and the Stand Your
    Ground law, but argues that the inclusion of language tracking section
    782.02 was incorrect. The State’s position is based on its argument that
    the Stand Your Ground law “revised the subject matter” of section 782.02
    and in doing so, “implicitly” replaced and repealed section 782.02.
    Specifically, the State argues that section 782.02 is “positively repugnant”
    with the Stand Your Ground law because section 782.02 does not contain
    the adjective “imminent” when referencing the threat to the person using
    self-defense nor does it require a “forcible felony” as referenced in the
    Stand Your Ground law. We disagree.
    3
    It is well settled that “repeal of a statute by implication is not favored
    and will be upheld only where irreconcilable conflict between the later
    statute and earlier statute shows legislative intent to repeal.” Town of
    Indian River Shores v. Richey, 
    348 So. 2d 1
    , 2 (Fla. 1977). The Stand Your
    Ground law essentially establishes that a person has no duty to retreat
    and may use deadly force if he or she reasonably believes deadly force is
    necessary. § 776.012, Fla. Stat. (2010); § 776.013(3), Fla. Stat. (2010).
    Section 782.02, in turn, echoes the reasonableness element of Stand Your
    Ground Law by providing that the use of deadly force is justified “when a
    person is resisting any attempt to murder such person or to commit any
    felony upon him or her.” § 782.02, Fla. Stat. (2010).
    We hold that the two statutes are not irreconcilable and, indeed,
    compliment each other. Our holding is based on the well-established
    principle that it is reasonable for a person subject to a felonious attack to
    believe deadly force is necessary to stop oneself from being killed or prevent
    serious bodily injury. Our conclusion that there is no conflict in these
    laws has been tacitly recognized by courts considering the adequacy of
    standard instruction 3.6(f). See Cruz v. State, 
    189 So. 3d 822
    , 831 (Fla.
    4th DCA 2015) (holding that “the standard instruction on the justifiable
    use of deadly force is a correct statement of the law”); Wyche v. State, 
    170 So. 3d 898
    , 905 (Fla. 3d DCA 2015) (“Jury Instruction 3.6(f) is an accurate
    statement of the law on the use of deadly force, and there is no conflict
    between any of the sections contained in Chapter 776 or any conflict
    within Jury Instruction 3.6(f).”). Accordingly, the court did not err in giving
    the standard jury instruction on the justifiable use of deadly force.
    Affirmed.
    CONNER and FORST, JJ., concur.
    *        *         *
    Not final until disposition of timely filed motion for rehearing.
    4
    

Document Info

Docket Number: 15-2780

Filed Date: 11/8/2017

Precedential Status: Precedential

Modified Date: 11/8/2017