Derossett v. State

294 So.3d 984

John DEROSSETT, Petitioner,

v.STATE of Florida, Respondent.

Case No. 5D19-0802

District Court of Appeal of Florida, Fifth District.

Opinion filed April 15, 2020

Michael Panella, of Panella Law Firm, Orlando, and Donald R. West, of Don West Law Group, Orlando, for Petitioner.

Ashley Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Respondent.

LAMBERT, J.

The parties are before this court for a second time on the petition filed by John Derossett seeking a writ to prohibit the continued prosecution of the three charges pending against him, each for attempted premeditated first-degree murder of a law enforcement officer while discharging a firearm regarding an incident that occurred at his home on the night of August 20, 2015. Derossett argues that the trial court erred in denying what is commonly referred to as a Stand Your Ground motion that he filed under Florida Rule of Criminal Procedure 3.190(b) and section 776.032(1), Florida Statutes (2018), seeking immunity from criminal prosecution and to dismiss the information charging him with these crimes.

As more fully discussed below, in our earlier decision, we had withheld the issuance of the writ of prohibition and relinquished jurisdiction back to the trial court with directions that the court resolve at a subsequent hearing two issues that it had specifically declined to address in its prior order. The first issue for consideration was whether the State proved, by clear and convincing evidence, that at the time Derossett used deadly force, he knew or reasonably should have known that the persons against whom he was using such force were law enforcement officers. Derossett v. State , 44 Fla. L. Weekly D2713, 2716, ––– So.3d ––––, ––––, 2019 WL 5848991(Fla. 5th DCA Nov. 7, 2019). Second, we directed the court to determine whether the State had established by clear and convincing evidence that Derossett was using his dwelling or residence to further a criminal activity at the time that he used deadly force. Id.¹

The parties thereafter appeared before the trial court and agreed that a further evidentiary hearing was not needed. Instead, they stipulated that the court could address these two issues by relying on the voluminous record produced from the earlier five-day evidentiary hearing held on Derossett's Stand Your Ground motion.

Following additional briefing by the parties, the trial court entered its order finding that the State had not established by clear and convincing evidence that Derossett knew or should have known that when he fired his weapon, he was shooting at law enforcement officers. The court did, however, find that the State established by clear and convincing evidence that Derossett was using his home to further criminal activity, thus effectively denying, for a second time, Derossett's Stand Your Ground motion to dismiss.

For the following reasons, we grant Derossett's petition for writ of prohibition,² quash the trial court's orders denying his motion to dismiss, and direct that Derossett be discharged.

To provide some context to our present analysis, we set forth the following relevant facts from our earlier opinion describing Derossett's use of deadly force:

Petitioner, John Derossett, a sixty-five-year-old retired General Motors autoworker, owned a home in Brevard County, Florida. Derossett's adult niece, Mary Ellis, lived with him in this home. Derossett had no criminal record, worked part-time as a security guard at Port Canaveral, and lawfully possessed a concealed weapons permit. He had also apparently taken a firearms training course.

On August 20, 2015, at approximately 9:30 p.m., Ellis answered a knock on the front door. As she opened the door, a man reached inside the threshold of the house, grabbed her arm, and began pulling Ellis out of the home and onto the covered front porch. Ellis struggled to resist her apparent abduction and screamed to her uncle (Derossett) that she needed help. At this point, two other men approached to physically assist the first man in pulling Ellis off the porch of the home and into the front yard.

Derossett, having heard his niece's screams for help, hurried from his bedroom to the front porch. He was armed. One of the three men saw Derossett rapidly advancing to the front door with his firearm and announced to the other two men that a man with a gun was approaching. The three men abruptly released Ellis, pushing her towards the front door, and scattered on the front lawn. Derossett immediately came out of his front door and stood under "the canopy part of the porch."

At this point, Derossett raised his gun, called out to the men, and fired a warning shot up in the air. The three men, now at diverse points on Derossett's front yard, and likewise armed, immediately shot their respective firearms at him. Derossett fired back. In total, more than forty rounds were exchanged. Despite being fairly close to each other, because it was dark at the time, none of the four men engaged in this incident had a clear view of the others. Derossett and his niece were both struck by gunfire, as was one of the three men in Derossett's front yard, who was severely wounded in the abdomen.

Derossett , 44 Fla. L. Weekly at 2713, ––– So.3d at ––––, 2019 WL 5848991. It was only after the exchange of gunfire was concluded and Derossett was shortly thereafter taken into custody that he learned:

The three men who came to Derossett's home that night were, in fact, deputy sheriffs with the Brevard County Sheriff's Office Special Investigations Unit conducting a "sting" operation directed at Ellis, whom they believed had been performing acts of prostitution in Derossett's home. They arrived at the home in unmarked vehicles and parked on the street away from the home. The deputy who first approached the home posed as Ellis's customer and was in plain clothes. He had made arrangements with Ellis earlier that day to meet and engage in a sexual act with her for money. This deputy was the individual whom Ellis first greeted at the door as her anticipated customer and who then entered the home by grabbing Ellis by the arm inside the threshold and pulling her out of the dwelling. The other two deputies were not in uniform and were the individuals who assisted the first deputy in attempting to subdue the now-screaming Ellis in order to make the warrantless, late-night arrest for solicitation of prostitution.

Id. at 2714, ––– So.3d at ––––, 2019 WL 5848991. (footnotes omitted).

In our earlier opinion, we concluded that the trial court had erred in its conclusion that, under the above described facts, Derossett was not entitled to the presumption under section 776.013(1), Florida Statutes (2015), of being in reasonable fear of imminent death or great bodily harm to his niece at the time that he used deadly defensive force at his home. Id. at 2716, ––– So.3d at ––––, 2019 WL 5848991. That statute, which is titled "Home protection; use or threatened use of deadly force; presumption of fear of death or great bodily harm" provided, in pertinent part:

(1) 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.

§ 776.013(1), Fla. Stat. (2015).

The significance of the presumption described in section 776.013(1) is that under section 776.032(1), Florida Statutes, a person, such as Derossett, using force as allowed in section 776.013, is justified in his conduct and is thus immune from criminal prosecution. However, the presumption of being in reasonable fear of imminent death or great bodily harm under section 776.013(1) is not absolute. Significant here, subsection (2)(c)–(d) of the applicable version of this statute³ states that this presumption does not apply if:

(c) The person who uses or threatens to use defensive force is engaged in a criminal activity or is using the dwelling, residence, or occupied vehicle to further a criminal activity; or

(d) The person against whom the defensive force is used or threatened is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using or threatening to use force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.^[4]

§ 776.013(2)(c)–(d), Fla. Stat. (2015).

In its earlier denial order, the trial court specifically found it unnecessary to address either of these exceptions because it determined that Derossett was not entitled to the presumption under section 776.013 of being in reasonable fear of imminent death or great bodily harm at the time that he fired his weapon. After concluding that the trial court was incorrect and that Derossett was entitled to this statutory presumption, we relinquished jurisdiction for the trial court to address whether either exception contained in section 776.013(2)(c) or (2)(d) applied so as to preclude Derossett's entitlement to the presumption. Derossett , 44 Fla. L. Weekly at 2716–17, ––– So.3d at ––––, 2019 WL 5848991.

The court has now entered its second order on Derossett's motion, which is before this...