Legal Pleadings:

Arrest on Wrong Statute


COMES NOW the Defendant, by and through his undersigned counsel, pursuant to Rule 3.190, Fla. R. Crim. P., and files this Motion to Dismiss (“Motion”), respectfully moving this Honorable Court to dismiss Count 1 of the Information, filed in the above-styled cause, and in support thereof, states as follows:

A. (c)(4) Law – Generally
This Motion is filed pursuant to provisions of Rule 3.190(c)(4), Fla. R. Crim. P., which provides that a motion to dismiss may be filed on the grounds that –
there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.

The facts, based on the eye witnesses sworn testimony, and the clear and simple reading of the temporary injunction, are undisputed, and application of the law to the undisputed facts shows that the State has not, and cannot, meet its factual, or legal, burden as to this charge. Accordingly, dismissal of the charge is appropriate.
“Rule 3.190(d) states and State v. Kalogeropolous, 758 So.2d 110, 112 (Fla.2000), holds that Rule 3.190(d) requires the State to specifically deny factual allegations and if necessary, add additional material facts that meet the minimal requirement of a prima facie case.” Galston v. State, 943 So. 2d 968, 971 (Fla. 5th DCA 2006). Specific denials of fact are required and where the “denial was not specific, [it is] therefore . . . not sufficient to dispute [defendant]’s factual allegations.” Id. A trial court should grant a motion to dismiss where the State fails “to specifically deny his allegation” in the traverse. Id.

“To establish a prima facie case, ‘the State must show only that a reasonable jury could find the defendant guilty of the charged crime under the most favorable construction of the evidence.’” State v. Benjamin, 187 So. 3d 352, 354 (Fla. 4th DCA 2016) citing State v. Yarn, 63 So. 3d 82, 85 (Fla. 2d DCA 2011).
B. Analysis of Ms. Watsky’s Temporary Injunction

Aside from the jurisdictional defects addressed in Part G below, the plain reading of the temporary injunction confirms the Defendant did not violate it by taking his sons to the City event.
This injunction contained the standard language, and had three operative provisions:
1. Residence / Place of Employment
The order (as do all of them), provided that:
Respondent shall not go to, in, or within 500 feet of: Petitioners current residence … Petitioner’s current or any subsequent place of employment …
Order at 3 (emphasis added).
Clearly, this “500 feet” rule only applied to two locations: (1) A.’s residence and (2) the school where she worked. Just as clearly, it did not list the property as such a location. Nor did it list the “person” of A. – as a place where the Defendant had to maintain a 500′ distance. Rather, and as always, this 500′ rule applied to places – not people.
Thus, this portion of the Injunction has no application to the Defendant’s arrest.

2. Automobile
The order (as do all of them), provided that:
Respondent may not knowingly come within 100 feet of Petitioner’s automobile at any time.
Order at 3 (emphasis added).
Clearly, this “100 feet” rule only applied to a single location: A.’s automobile. Just as clearly, it did not list the property as such a location. Nor did it list the “person” of A. as a place where the Defendant had to maintain a 100′ distance.
Again, as always, this 100′ rule applied to a place – not a person.
Thus, this portion of the Injunction has no application to the Defendant’s arrest.

3. Person
Lastly, the order provided that the Defendant could not:
contact Petitioner in person, by mail, e-mail, fax, telephone …
Those nouns (mail, e-mail, fax, telephone) contemplate some form of communication with the Petitioner, and, thus, under the principle of ejusdem generis, the “in person” contact would require some form of communication.

Interpreting the plain language of these boilerplate orders requires application of the rules of statutory construction. In that regard, Rollins v. Pizzarelli, 761 So. 2d 294, 298 (Fla. 2000) held that,
As in all cases involving statutory construction, our starting point must be the language employed by Congress, and we assume that the legislative purpose is expressed by the ordinary meaning of the words used. Thus, absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” United States v. Fisher, 289 F.3d 1329, 1338 (11th Cir. 2002), citing American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982). “When a term is undefined by statute, ‘[o]ne of the most fundamental tenets of statutory construction’ requires that we give a statutory term ‘its plain and ordinary meaning.’ When necessary, the plain and ordinary meaning ‘can be ascertained by reference to a dictionary.’” Rollins v. Pizzarelli, 761 So. 2d 294, 298 (Fla. 2000), citing Green v. State, 604 So.2d 471, 473 (Fla.1992); in accord State v. J.H.B., 415 So.2d 814, 815 (Fla. 1st DCA 1982)(common or ordinary meaning applies, when the term is not defined by the statute); State v. Bryant, 953 So.2d 585, 587 (Fla. 1st DCA 2007)(“Common understanding and reason must be used when analyzing a statute, and words of common usage not specifically defined must be given their plain and ordinary meaning”)

As noted, under Florida Supreme Court law, the plain and ordinary meaning ‘can be ascertained by reference to a dictionary.
A review of Webster’s definition of contact is instructive. It defines “contact” as “touching” and “communication” – which is precisely the term of the Florida injunction statute. Webster’s also provides synonyms for contact, as follows:
Synonyms: Noun – connection
Synonyms: Verb – address, communicate (with), get, reach

Of course, we harken back to the plain language of the temporary order. It absolutely has no distance requirement – as to any distance the Defendant is supposed to maintain from A. Rather, the only distance requirement in the order is as to places – that is, her home, business or car.

Further proof of the absence of any such distance requirement is found in this Honorable Court’s December 12, Bond Order. For the first time, the Defendant was informed by a Court as to the distance he must maintain from A. This Honorable Court, in recognition of the absence of any such proximity provision in the civil injunction, imposed a 1,000′ “personal” distance term in the oral bond order.

This is the only time the Defendant has been given a proximity (distance) order, with regard to A.’s person. Clearly, this bond order constitutes further proof it was not a requirement – before it was ordered by this Honorable Court.

In considering this matter, one need look no further than the plain language of the civil injunction order. However, even if you were to argue that the Defendant should have kept a certain distance from A., where would you find such a provision in the civil order? It is not there. As noted, it appears, for the first time, in the bond order.

Of course, there are compelling practical and historic reasons for why standard injunction orders do not place a distance requirement applicable to the person. First, there is no way for the Respondent to ever know where the Petition is located (unless Respondent can see Petitioner). Indeed, a Respondent could be at a shopping mall, in one store, with the Petitioner in the adjacent store, and theoretically violate any such “distance from the person” term. Second, no court would order placement of a GPS monitor on the Petitioner, in order for a Respondent to be continually informed of the proximity of the Petitioner, so that the Respondent could achieve compliance with such a “distance from the person” term.

Even if there existed some ambiguity in the civil order, any such ambiguity would have to be resolved in the Defendant’s favor, by application of the Rule of Lenity, codified at F.S. §775.021. That statute is entitled, “Rules of construction,” and specifically states, in subsection (1):

The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible to differing constructions, it shall be construed most favorably to the accused.
(emphasis added).

Of course, the Rule of Lenity, and the strict reading of the plain language of the temporary order, are all the more applicable, given the facts of this case, including the following:
1. The Defendant was in a public place, that is, a City park,
2. on invitation from the City of Jacksonville,
3. where hundreds of citizens attended,
4. at an event designed for children,
5. that was not an event sponsored by the Jewish Center or the school.
Respectfully, this event, and this location, attended by the Defendant with his two minor sons, can hardly be an appropriate venue to suggest that the Defendant was willfully violating the temporary injunction. Nor was he.

C. Analysis of Facts Allegedly Supporting Arrest
The facts recited in the Arrest and Booking Report do not support the arrest – for all the reasons set forth herein. The Defendant’s presence, in a public park, with his minor sons, at a city-wide event, sponsored by the City, located miles from Ms. W.’s residence and place of employment, where he had no actual “contact” with Ms. W., could never have violated the injunction. Indeed, as discussed in Part D, below, but for the incredible error by JSO, the Defendant would not have been arrested.

Nowhere in the probable cause section of the Arrest Report is there any evidence of a violation of the order. The closest the Report claims that the Defendant was to Ms. W. was “50 feet away.” Of course, for all the reasons noted, absent some form of “contact” with her, the Defendant could have been 5 feet away from her, or even one foot away, and not be in violation of the injunction.
In her deposition, Ms. W. confirmed there was only a 5 second “eye contact” when the Defendant first entered the park with his sons, and headed to the food line. Tr. at 22:2-25 – 23:1-19. At no other time did he even have eye contact with her. At no time did he contact her, or even attempt to speak to her, touch her, call her, or email her, let alone threaten her. Tr. at 18:6-20. Nor did he communicate with her in anyway. Tr. at 19:5-7.

Indeed, that was consistent with his entire history with her, as confirmed by Ms. W., who testified he has never “engaged in any act of violence against [her].” Tr. at 43:3-5.
D. Mistake by JSO in Reading the Injunction

1. “500 Feet” From Person” – Erroneous Basis for Arrest
The Arrest Report graphically explains why this improper arrest was made. The arresting officer misread the injunction, and stated the basis for his arrest as follows: “the suspect is not allowed to be within 500 feet of the victim.” (emphasis added).
Clearly, there is no such provision in the injunction. As noted, the only “500 feet” provision is as to her home or place of work – not her “person.”
Indeed, Ms. W. also (wrongly) believed such a provision, requiring the Defendant to be 500′ away from her person was in the injunction. Tr. at 62:18-25 – 63:1-4. However, upon examination, she acknowledged she did not really know if that language was in the temporary injunction, such that the Defendant was prevented from participating “in a public event.” Tr. at 60:18-24. Of course, as is plain from the face of the temporary injunction, it is not there. However, that mistaken understanding by Ms. W. helps explain why she mistakenly thought the Defendant was violating the injunction by attending this City-wide function.

2. Caselaw – Contact with Person – As Distinguished from Distance Requirements
Hoffman v. Florida, 843 So.2d 895 (Fla. 2d DCA 2003), is a particularly illuminating case, on the issue of interpretation of the plain language of injunctions in general, and the W. one in particular. In that case, two violations of the injunction were asserted. The court first reviewed the terms of the injunction, as follows:
Under the terms of the injunction, Ms. H. was not to “directly or indirectly contact [Ms. D.] in person, by mail, e-mail, fax, telephone, through another person, or in any other manner.” Additionally, Ms. H. was ordered not to come within 500 feet of Ms. D.’s residence or Ms. D.’s child’s daycare.
Hoffman at 896 (emphasis added).

As can be seen, the Hoffman injunction terms were almost identical to those in the W. temporary injunction. Like Ms. H., the Defendant was to have (1) no “contact” with Ms. W., and (2) could not come within 500′ of her home or place of employment. Of course, these terms are in every injunction, and are forms approved by the Florida Supreme Court, and thus are uniform throughout the State.

The Hoffman court then reviewed the alleged grounds to support the two violations alleged, stating as follows:
Ms. D. alleged that Ms. H. violated the injunction for protection on several occasions. In its written order, the trial court found that two of the allegations were proven. The first allegation was that Ms. H. violated the injunction by sending Ms. D. cards. Ms. D. also submitted that Ms. Hoffman violated the injunction by coming within 500 feet of her child’s daycare.
Hoffman at 896 (emphasis added).

The court’s analysis of the “contact in person” claim is especially informative. On that ground, the Hoffman court (at 896-97) stated:

First, Ms. H. argues that the evidence was insufficient to prove that she violated the injunction for protection by sending cards to Ms. D. The only testimony regarding the cards allegedly sent to Ms. D. occurred during Ms. D.’s cross-examination. She testified that the cards were not sent to her; rather, they were addressed either to Ms. H.’s son or to her ex-husband. Ms. D. testified that she read the cards when she opened the ex-husband’s mail. The injunction does not prohibit Ms. H. from sending cards to either her ex-husband or her son. Thus, we conclude that the evidence presented did not prove that Ms. H. violated the injunction by sending the cards.

As can be seen, the court applied the traditional analysis of the term “contact,” and concluded there had been none. Most importantly, the court did not consider the proximity of Ms. D., being “across the street” from Petitioner H., as evidence of any violation of the “no contact” term – even though Respondent D. “went right across the street and sat there flicking me off and smiling at me.”

The reality that the “no contact” provision – in this standardized and uniform temporary injunctions – is not violated by the proximity of the Respondent to the Petitioner – is manifested in this case. Pursuant to the clear language of the statute and the injunction, there is no “proximity” violation of the “no contact” term – unless that proximity is in violation of the 500′ foot rule.
The Hoffman court’s analysis of the “500 foot” claim further confirms that correct reading of the injunction. On that ground, the Hoffman court (at 897) stated as follows:

Next, Ms. H. argues that the trial court erred when it found her in violation of the injunction for coming within 500 feet of her child’s daycare. Ms. D. testified that when she dropped Ms. H.’s child off at his daycare, Ms. H. was across the street at a carwash. Ms. D. presented the only testimony regarding the location of the carwash. During direct examination, she stated that Ms. H. “went right across the street and sat there flicking me off and smiling at me.” During cross-examination, she testified that Ms. H. “was across the street at the carwash. It’s directly across the street.”
However, “the State did not sufficiently prove that the carwash was within 500 feet of the daycare,” for reason that “testimony that the carwash was ‘directly across the street’” was insufficient to establish an actual distance. Id.

Again, it is entirely clear that a respondent (whether it be the Defendant or any respondent) cannot, and does not, violate the “no contact” provision of an injunction – by merely being in the area of the petitioner – unless he or she is within 500′ of the petitioner’s home or place or employment (or, as here, within 100′ of petitioner’s automobile).

For these compelling reasons, as a matter of law, and as guided by precedent, the Defendant was not in violation of the W. temporary injunction, by being present, with his minor sons, in a public park, at a religious event, sponsored by the City, where he never had an actual “contact” with Ms. W.

Of course, Hoffman, at 897, stated the obvious:
The State is required to “‘prove every essential element of the crime charged’ by proof beyond a reasonable doubt.” Cordova v. State, 675 So.2d 632 (Fla. 3d DCA 1996) (quoting Purifoy v. State, 359 So.2d 446, 449 (Fla.1978)) (citation omitted).

In summary, the Hoffman case points out the obvious and only lawful reading of injunctions that is, “contact” means actual contact, and the distance terms of the injunction (whether they be the 500′ from the house or place of employment provision, or the 100′ from the automobile provision) apply to those places – not the person. As noted, that is intuitive from the plain reading of both the statute and the W. temporary injunction, but this Hoffman case provides an excellent example of how these entirely separate terms are actually applied. They are applied in their literal and plain-meaning sense – as mandated by Florida’s Doctrine of Lenity law.

3. Wrong Statute Cited For Arrest
In addition, Office H. arrested the Defendant under the wrong statute. He cited the domestic violence statute, F.S. §741.31. However, clearly, this is not a domestic violence case. The injunction was for alleged dating violence, under F.S. §784.047.

4. Impact on Minor Sons of the Defendant
Of additional interest is that Officer H. makes no mention in his Report that he arrested the Defendant while the Defendant was at the property, on a sacred Jewish holiday, with his two minor children.

Why would he leave out the fact the Defendant was with his two boys? Would including the fact he was there with his two sons, enjoying the events with his boys, further prove there was no violence or violation by the Defendant?

In any event, the arrest was a shocking scene to his two minor sons, and the arrest left them scrambling for an adult to take them home. One of the sons almost fainted, due to the shock of seeing his father arrested.

E. Analysis of December 19 Filed Information
As noted above, the Information recites the wrong criminal statute – just like the Arrest and Booking Report did.
More to the point, the Information allegation further proves that the Defendant did not violate the injunction. Specifically, the Information alleges the Defendant violated the injunction,
by going to the Petitioner’s, A.W., residence, school, place of employment or a specified place frequented regularly by Petitioner

(emphasis added).
Thus, the Information recites four (4) enumerated locations (places) the Defendant could allegedly not have been “going to.” We will address the first three, and then the fourth.
The first three locations were “residence, school, place of employment” – but the property is not any of those locations. Thus, the first three locations, recited in the Information, fail to state a crime.

The fourth location recited in the Information is: “a specified place frequented regularly by Petitioner.” Where is the “specified place”? Where is that language in the Temporary Injunction?
Clearly, the property is not such a place “specified” in the Temporary Injunction. Indeed there is no place listed in the Temporary Injunction, as a “a specified place frequented regularly by Petitioner.” Clearly, this allegation in the Information has no application to the Defendant.

In short, none of the places recited in the Information apply to the Defendant. As such, the Information fails to state a cause of action.
Of course, the mere fact that the Information does list actual locations clearly reinforces the point we make here, that is, that the Defendant did not, and could not, violate the injunction – by merely being present, in a public park, with his sons, during a time that Ms. W. was in the same park – but during which time they had no actual “contact.”

F. Analysis of F.S. §784.047As noted in Part E, the Information recites the wrong statute. For this alleged violation of a dating injunction, the correct criminal statute is F.S. §784.047 – not the §741.31(4)(a)2 cited.

Since F.S. §784.047 is the correct statute of prosecution, it is essential that we dissect the means by which a person can be found to have violated that statute. As revealed by a reading of the statutes, the statute lists 8 ways to violate a dating violence injunction.

A review of those 8 ways makes it clear that none of them assert that being at a religious function violates the statute – as the Defendant was here. Of course, a review of the violation statute is actually unnecessary, since it is clear, as demonstrated in Parts B-D above, the plain reading of the Temporary Injunction precludes prosecution.
Indeed – the only provision of the 8 that speaks to any distance requirement – is the same two provisions we see in every injunction (because every injunction adheres to the Supreme Court form), and see it in the Defendant’s, that is:
1. 500′ rule – in subparagraph (1)(b) – for home / work; and
2. 100′ rule – in subparagraph (1)(f) – for automobile.

Clearly, none of the other 8 means by which that statute can be violated apply to the Defendant.

In short, no prosecution lies, under this criminal statute, as to the Defendant – even if it could be proven that his presence, with his minor sons, in a public park, at a religious event, sponsored by the City, violated a term of the Temporary Injunction (which, of course, it did not).
WHEREFORE, it is respectfully requested that this Motion to Dismiss be granted