IN THE SUPREME COURT OF FLORIDA STATE OF FLORIDA, ) ) Petitioner, ) ) v. PAUL E. KING, ) ) Respondent. ) DISCRETIONARY REVIEW OF DECISION OF THE SECOND DISTRICT COURT OF APPEAL OF FLORIDA RESPONDENT’S ANSWER BRIEF ON THE MERITS MARK A. GRUWELL Law Offices of Mark A. Gruwell 747 North Washington Boulevard Sarasota, Florida 34236 (941) 365-4402 (941) 366-8847 (Fax) Florida Bar No. 0946575 Attorney for Respondent TABLE OF CONTENTS TABLE OF CITATIONS....................................................................................ii SUMMARY OF THE ARGUMENT ...................................................................1 ISSUE................................................................................................................4 WHETHER A SPANKING ADMINISTERED AS CORPORAL PUNISHMENT THAT RESULTS IN SIGNIFICANT BRUISES OR WELTS MAY CONSTITUTE FELONY CHILD ABUSE UNDER § 827.03(1), FLA. STAT. (2001)? ARGUMENT .....................................................................................................5 A SPANKING ADMINISTERED AS CORPORAL PUNISHMENT THAT RESULTS IN SIGNIFICANT BRUISES OR WELTS DOES NOT CONSTITUTE FELONY CHILD ABUSE UNDER § 827.03(1), FLA. STAT. (2001). CONCLUSION................................................................................................ 13 CERTIFICATE OF FONT COMPLIANCE....................................................... 14 CERTIFICATE OF SERVICE.......................................................................... 15 TABLE OF CITATIONS DuFresne v. State, 826 So. 2d 272 (Fla. 2002)...................................................6-7 Kama v. State, 507 So. 2d 154 (Fla. 1st DCA 1987)..............................................5 King v. State, 30 Fla. L. Weekly D368 (Fla. 2d DCA Feb. 4, 2005) ................. 5,12 Raford v. State, 828 So. 2d 1012 (Fla. 2002)................................................ 8-9,12 S.J.C. v. State, 30 Fla. L. Weekly D721 (Fla. 2d DCA Mar. 11, 2005) ................ 12 State v. Fuchs, 769 So. 2d 1006 (Fla. 2000) ................................................. 6-7,11 State v. McDonald, 785 So. 2d 640 (Fla. 2d DCA 2001).............................5,8-9,12 Stoletz v. State, 875 So. 2d 575 (Fla. 2004)........................................................ 11 * * * * * * * * * * § 39.01(2), Fla. Stat. ........................................................................................ 5,7 § 39.01(14), Fla. Stat...........................................................................................7 § 39.01(30), Fla. Stat........................................................................................5-6 § 39.01(30)(a)(4)(k), Fla. Stat..............................................................................7 § 775.021(1), Fla. Stat....................................................................................... 10 § 827.03(1), Fla. Stat............................................................................. 5-6,8-9,11 § 827.03(2), Fla. Stat...........................................................................................9 § 827.04(1)(a), Fla. Stat. ................................................................................ 7-11 ii § 827.04(2), Fla. Stat................................................................................. 8,10-11 * * * * * * * * * * Ch. 98-403, § 20, Laws of Fla. .........................................................................5-6 iii SUMMARY OF THE ARGUMENT This Court should answer the certified question in the negative and hold that a spanking administered as corporal punishment that results in significant bruises or welts does not constitute felony child abuse under § 827.03(1), Fla. Stat. (2001). Initially, it should be noted that the Second District Court of Appeal engaged in an accurate and thorough analysis of the statutory amendments that followed Kama. Under the statutory amendments, simple child abuse, which was once a misdemeanor, became a third-degree felony. Aggravated child abuse, which was once a second-degree felony, eventually became a first-degree felony. Lastly, a variety of terms and definitions were added to interrelated statutes. In sum, these terms and definitions defined abuse as, inter alia, corporal punishment that results in significant bruises and welts. Although these terms and definitions appear in Chapter 39 of the Florida Statutes, they interrelate with the criminal offenses of felony child abuse and contributing to the dependency of a child, both of which appear in Chapter 827 of the Florida Statutes. Accordingly, the criminal offenses of felony child abuse and contributing to the dependency of a child must be read in para materia with the various statutory amendments which were made to Chapter 39 of the Florida Statutes. When the statutes are read together, it becomes clear that there are three (3) 1 levels of child abuse. Spankings that result in nothing more than significant bruises and welts constitute the crime of contributing to the dependency of a child, a first-degree misdemeanor. Spankings that result in more than significant bruises and welts, but do not result in great bodily harm or a permanent disfigurement or disability, constitute the crime of felony child abuse, a third-degree felony. Lastly, spankings that result in great bodily harm or a permanent disfigurement or disability constitute the crime of aggravated child abuse, a first-degree felony. Because Respondent did not inflict anything other than significant bruises and welts, Respondent could not have been convicted of felony child abuse. Said differently, Respondent’s offense did not extend beyond the crime of contributing to the dependency of a child. The foregoing analysis of the felony child abuse statute and its interrelated statutes was adopted and applied by the Second District Court of Appeal in a case prior to the case sub judice. Approximately a year later, this Court not only approved the Second District Court of Appeal’s earlier decision in this regard, but also cited the specific language originally used by the Second District Court of Appeal when it discussed the three (3) levels of child abuse. Accordingly, this Court is bound by its earlier precedent in this regard. Additionally, even if Respondent could have been charged under both 2 statutes, that is, contributing to the dependency of a child and felony child abuse, the rule of lenity requires the certified question to be answered in the negative. This is especially true when, as here, the judiciary has expressed difficulty distinguishing between the misdemeanor offense of contributing to the dependency of a child and felony child abuse. Since statutes are required to be construed in favor of the accused, any doubt in this regard should be resolved by favoring the misdemeanor offense over the felony offense. Likewise, since the misdemeanor statute and its interrelated terms and definitions are more specific than the general felony child abuse statute, the misdemeanor statute should apply. Consequently, under either analysis the child abuse statutes should be construed in such a manner wherein spankings that leave only significant bruises and welts give rise to the misdemeanor offense of contributing to the dependency of a child as opposed to felony child abuse. Accordingly, the certified question should be answered in the negative. Absent injuries that go beyond significant bruises and welts, the felony child abuse statute is not applicable to cases involving corporal punishment. 3 ISSUE WHETHER A SPANKING ADMINISTERED AS CORPORAL PUNISHMENT THAT RESULTS IN SIGNIFICANT BRUISES OR WELTS MAY CONSTITUTE FELONY CHILD ABUSE UNDER § 827.03(1), FLA. STAT. (2001)? 4 ARGUMENT A SPANKING ADMINISTERED AS CORPORAL PUNISHMENT THAT RESULTS IN SIGNIFICANT BRUISES OR WELTS DOES NOT CONSTITUTE FELONY CHILD ABUSE UNDER § 827.03(1), FLA. STAT. (2001). In State v. McDonald, 785 So. 2d 640 (Fla. 2d DCA 2001), review denied, 837 So. 2d 1012 (Fla. 2002), the Second District Court of Appeal addressed the various legislative changes that occurred subsequent to Kama v. State, 507 So. 2d 154 (Fla. 1st DCA 1987). These legislative changes are key in understanding why King v. State, 30 Fla. L. Weekly D368 (Fla. 2d DCA Feb. 4, 2005), consistent with McDonald, correctly holds that Respondent cannot be convicted of felony child abuse under § 827.03(1), Fla. Stat. (2001). First, the criminal offense of simple child abuse, which was previously a misdemeanor, became a third-degree felony. McDonald, 785 So. 2d at 645. Second, the criminal offense of aggravated child abuse, which was previously a second-degree felony, ultimately became a first- degree felony. Id. Finally, and most importantly, various additions were made to Chapter 39 of the Florida Statutes. Id. The additions to Chapter 39 of the Florida Statutes included adding the term “harm” to the definition of “abuse” as set forth in § 39.01(2), Fla. Stat. Ch. 98- 5 403, § 20, Laws of Fla. Additionally, the legislature created § 39.01(30), Fla. Stat., which defined “harm” as including “inappropriate or excessively harsh disciplinary action.” Id. Specifically, the legislature declared: “Inappropriate or excessively harsh disciplinary action that is likely to result in physical injury, mental injury as defined in this section, or emotional injury. The significance of any injury must be evaluated in light of the following factors: the age of the child; any prior history of injuries to the child; the location of the injury on the body of the child; the multiplicity