IN THE CIRCUIT COURT IN AND FOR ORANGE COUNTY, FLORIDA. CASE NO.

48-2007-CF-1796-O STATE OF FLORIDA, Plaintiff, -vsLISA 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

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

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. 4th DCA 1997) (principle of in para 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. 5th DCA 2008) In the case of these two statutes the Court is invited to the opening 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:

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

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. 4th DCA 2004) 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.

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