Florida Stand Your Ground Statute 776.013 Home Protection: "Unlawful And Forcible Entry"

Although Florida's Stand Your Ground Statutes Chapter 776 were created in 2005, it was not until 2017 that these laws became more user friendly for putative defendants, as the burden of proof to overcome a well plead claim of immunity from prosecution shifted to the State in 2017. Now the State must overcome a defendant's claim of immunity from prosecution by clear and convincing evidence that defendant is not entitled to immunity under Florida's Stand Your Ground laws, post June 9, 2017. See Florida Statutes 776.032(4)

Regarding 'Home Protection' Florida Stand Your Ground Statute 776.013 makes reference to 'unlawful and forcible entry' as a basis for a home owner or resident to use deadly force, or to threaten use of deadly force, with impunity, as derived from these excerpts:

776.013 Home protection; use or threatened use of deadly force; presumption of fear of death or great bodily harm.—

(1) 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:

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(b) Deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.

(2) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using or threatening to use defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used or threatened was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses or threatens to use defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(3) The presumption set forth in subsection (2) does not apply if:

(a) The person against whom the defensive force is used or threatened has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or ...

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In short, the statute appears to create a statutory "presumption" of death or great bodily harm, sufficient to use or threaten to use deadly force upon someone who had "unlawfully and forcibly entered" the dwelling where the putative defendant also "knew or had reason to believe" that an "unlawful and forcible entry" had occurred. Id.

So what does "unlawful and forcible entry" really mean for purposes of Florida's Stand Your Ground Home Protection Statute 776.013?

The short answer is that nobody really knows for sure yet. There are no reported cases on point, no statutory definitions in the criminal statutes, and as the term connotes, the literal word meanings cross over terms of art used both in English Common law and Florida civil residential occupancy statutes.

In Florida, statutory definitions trump English common law definitions to the extent statutory definitions exist. Common terms are subject to literal meaning. The term of art "unlawful and forcible entry" is not defined per se in the Florida criminal statutes, and will likely need either Legislative or Court definition.

There is no Florida statutory definition for "unlawful and forcible entry" in the criminal statutes; however, the terms of art: "unlawful entry" and "forcible entry" are defined in Florida Statutes Sec. 82.01, for purposes of Chapter 82 only, as follows:

82.01 Definitions.—As used in this chapter, the term:

(1) “Forcible entry” means entering into and taking possession of real property [including structures] with force, in a manner that is not peaceable, easy, or open, even if such entry is authorized by a person entitled to possession of the real property and the possession is only temporary or applies only to a portion of the real property.

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(5) “Unlawful entry” means the entry into and possessing of real property, even if the possession is temporary or for a portion of the real property, when such entry is not authorized by law or consented to by a person entitled to possession of the real property.

Although Chapter 82.01 is a civil In Rem statute with definitions pertaining strictly to Chapter 82, related to unlawful detainer or property, invariably the definitions for "unlawful entry" and "forcible entry" will be implicated at some point and used to define Florida Statute Sec. 776.013 term of art "unlawful and forcible entry".

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Potential confusion lies in a situation where law enforcement believes that forcible entry is being made by someone 'authorized by law' to forcibly enter, such as a co-tenant, co-occupant, transient occupant, ex-house guest, person with a key you gave them, etc..against the authorization or consent of the owner or primary resident of the dwelling.

These finer civil In Rem nuances regarding who is legally entitled to possession or temporary possession of real property, and whose possession of property would be deemed 'unlawful', appear to be intertwined with the foundation term of art in Florida Statutes Sec 776.013 'unlawful and forcible entry' necessary to create a statutory presumption of 'fear of death or great bodily harm' sufficient for a homeowner or primary resident to warrant use or threatened use of deadly force with impunity.

Florida Courts have yet to decide what "unlawful and forcible entry" means for purposes of Florida's Stand Your Ground laws, because this term of art has not yet become the basis of any appeal. There will come a point in time when someone technically unlawfully and forcibly enters a dwelling and is met with use or threatened use of deadly force by a homeowner, that will cause Florida Court's to make a proper definition for this term of art in the criminal statutes.

In the meantime if a homeowner revokes consent for another to enter his or her dwelling, but that person is otherwise authorized by law to enter forcibly regardless of the homeowner's revoked consent, these issues will be material to whether the homeowner can legally use or threaten to use deadly force with impunity or not under Florida's Stand Your Ground laws, post June 2, 2017. These matters are undecided as of the date of this writing.

The Author believes that in the right case, with the right set of underlying facts, that a putative criminal defendant may be able to file a civil Declaratory Relief, asking the Court to make a judicial determination that "unlawful and forcible entry" in Sec. 776.013 is defined as "unlawful entry" + "forcible entry" as defined in Sec. 82.01. The Chapter 82 definitions may be more user friendly for a putative defendant attempting to bring a stand your ground defense, than a criminal court interpretation of the term of art "unlawful and forcible entry". Food for thought there..

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This article is for informational and educational purposes only and should not be construed as constituting legal advice. It is intended to provoke critical thinking related to the issues presented. The opinions rendered are the opinions of the Author, a non attorney. Nothing presented in this Article should be interpreted as legal advice as any such interpretation is unintended. In fact it is not legal advice and was written by a non-attorney. You should consult with your attorney to determine the best course of action to take on your case.

Copyright 2018 All Right Reserved, by Joseph J. Pappacoda, JD, Senior Litigation Paralegal, GhostWriter Paralegal, Chartered, Fort Lauderdale, Florida