IN THE CIRCUIT COURT IN AND

FOR ORANGE COUNTY, FLORIDA.

CASE NO. 48-2007-CF-1796-O

STATE OF FLORIDA,

Plaintiff,

-vs-

LISA MARIE NOWAK,

Defendant.

____________________________________/

MOTION TO DISMISS AND INCORPORATED MEMORANDUM

COMES NOW Defendant, LISA M. NOWAK, by and through the

undersigned and pursuant to Fla.R.Crim.P. 3.190, moves this court to dismiss

Count 1 of the Information. As grounds therefore, she would show:

1. The Defendant is charged in Count 1 of the Information with burglary of

a conveyance with an assault or battery with a weapon. This is charged as a life

felony. There are different ways to create a life felony from a burglary to a

conveyance. For instance, the Defendant can be charged with use of a dangerous

weapon in violation of F.S. 810.02(2)(b). However, in this case LISA NOWAK is

charged with burglary of a conveyance and the state seeks an enhanced sentence

under F.S. 775.087(1), for use of a weapon. This might seem academic in view of

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the fact that a conviction under 810.02(2)(a) with which the Defendant is charged,

herein, also carries a life sentence, but the state has chosen not to limit the

“offense” that the Defendant intended to commit in this case so if a jury were to

find that a burglary was committed, but that an assault and battery was not, then

the Defendant could still receive a life sentence if the jury found that a weapon was

involved. This would be an erroneous result. The weapon enhancement, as pled,

is improper. There presently exists a specific weapon enhancement enacted under

810.02(2)(b) for being or becoming armed in the course of committing a burglary.

This requires pleading and proof of being “armed with explosives or dangerous

weapons.” This is missing from the Nowak Information now before this Court.

2. Had it been the intent of the Florida legislature for a §775.087 sentence

enhancement to be utilized in conjunction with §810.02(2) there would have been

no need for the lawmakers to deliberately add 810.02(2)(b). We can infer from the

statutory inclusion that they did not.

3. By implementing F.S. 810.02(2)(b) the legislature already provides an

enhanced punishment for use of a weapon, but requires that it be a “dangerous”

weapon. It is nonsensical and contrary to legislative construction to assume under

these facts that both a weapon and a dangerous weapon, unless they mean the same

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thing (which they do not,) qualify a Defendant for an enhanced sentence. Ward v.

State, 936 So.2d 1143 (Fla. 3d DCA 2006) (it must be assumed that the legislature

knows the plain and ordinary meaning of words and the Court should recognize

generally accepted phraseology); Kasischke v. State, 991 So.2d 803 (Fla. 2008)

(statutory provision should not be construed in such a way that it leads to absurd

results); State v. Cohen, 696 So.2d 435 (Fla. 4 DCA 1997) (principle of in parath

materia requires that a law be construed together with any other law relating to the

same purpose such that they are in harmony).

4. F.S. §810.02(2)(b) is specifically aimed at a burglary in which a

dangerous weapon is used. It is a specific statute. F.S. §775.087 is a general

enhancement statute applying to a wide range of felonies. It is a general statute. A

specific statute controls over a general statute. State v. Leukel, 979 So.2d 292 (Fla.

5 DCA 2008) In the case of these two statutes the Court is invited to the openingth

phrase of §775.087 “unless otherwise provided by law.” This language

undeniably relinquishes control to F.S. §810.02(2)(b). It should be noted, as well,

that burglary of a conveyance is a second degree felony if “in the course of

committing the offense, the offender does not make an assault or battery and is not

and does not become armed with a dangerous weapon or explosives…”:

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F.S.810.02(3) In other words, even if the offender does not commit an assault or

battery, the burglary can still be enhanced by carrying a dangerous weapon, but not

just a weapon.

5. When the Information is properly charged under §810.02(2)(b) it

becomes the burden of the State to prove beyond a reasonable doubt that

Defendant was armed with explosives or a dangerous weapon while within the

conveyance. Based on discovery provided to the Defendant, the State can make no

such argument. The alleged battery was purportedly perpetrated using a can of

self-defense pepper spray.

6. The term “dangerous weapon” is not defined in statutes §810.02,

§775.087 or §790.001. We can make reference to Mitchell v. State, 698 So.2d

555, 559 (Fla. 2d DCA 1997) (standard jury instruction defines dangerous weapon

as any weapon that, taking into account the manner in which it is used, is likely to

produce death or great bodily harm.) Brown v. State, 896 So.2d 808 (Fla. 2005)

provides guidance that “dangerous weapon and deadly weapon are defined, in part,

by the manner in which the object is used during the commission of an offense.”

In the case of LISA NOWAK now before this Court the can of pepper spray is the

only object the State can demonstrate to be used and it is required to prove that it

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was used in a manner likely to produce death or great bodily harm. After thorough

inquiry the defense is unable to find a single instance of non-police issue pepper

spray causing death or great bodily harm, let alone enough to make such an

occurrence likely. “Tear gas guns, chemical mace, or other such dispensing

devices which fire non-lethal liquids or gases may legally be carried on the person

and not prohibited arms or a deadly weapon.” Op. Atty.Gen. 068-103 (Sept. 23

1968) The terms “dangerous weapon” and “deadly weapon” are synonymous.

Jones v. State, 885 So.2d 466 (Fla. 4 DCA 2004) th

7. Finally, the facts discovered at deposition reveal that at the scene of the

alleged incident on February 5, 2007 and immediately following the alleged pepper

spray attack, alleged victim Colleen Shipman declined assistance from fire

department paramedics and advised them that she had no direct contact with the

spray. See depositions of William Hagedorn and Gregory Loebl, filed with the

Court. Therefore, the evidence is conclusive that on February 5, 2007 the pepper

spray was not used in a “manner likely to produce death or great bodily harm.”

WHEREFORE, Defendant moves this Court to enter its order for dismissal

of Count 1 of the Information.

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I HEREBY CERTIFY that a true copy hereof has been furnished by mail to

PAM DAVIS, ASSISTANT STATE ATTORNEY, P.O. Box 1673, Orlando, FL,

32802-1673 on September 22, 2009.

______________________________

DONALD A. LYKKEBAK, ESQ.

Florida Bar No. 0130311

390 N. Orange Ave., Suite 2100

Orlando, FL 32801-1642

407-425-4044

Fax: 407-425-0007

Attorney for Defendant

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