Let's address the first question by introducing s.776.013 and
(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 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 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 defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred....(4) A person who unlawfully and by force enters or attempts to enter a person's dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence....§ 776.013, Fla. Stat. Ann.
... a person is justified in the use of deadly force and does not have a duty to retreat if:(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony;...§ 776.012, Fla. Stat. Ann.
In our hypothetical scenario above, at the time of the shooting 776.012 was clearly inapplicable, because the homeowner, by her own testimony was not in fear or imminent death or great bodily harm. Even if her testimony was not available, her husband and the victim provide eye witness testimony as to the facts and circumstances, which suggest a reasonable person would not have been in imminent fear of death or great bodily harm, because the burglar had surrendered. But what of 776.013? (a) and (b) appear to be satisfied, because the burglar "had unlawfully and forcibly entered a dwelling" and the homeowner "had reason to believe that an unlawful and forcible entry or unlawful and forcible act ... had occurred." The statute says there is a presumption she "held a reasonable fear of imminent peril of death or great bodily harm to ... herself ." So in our hypothetical, we have a presumption provided by a statute that is the exact opposite of the facts in reality.
So when are presumptions rebuttable, and when are they conclusive?
In civil cases, the Florida Evidence Code provides some guidance in civil cases through 90.301(2) :
Pursuant to (4), 90.301(2) only applies to civil cases. See Hlad v. State, 565 So. 2d 762, 768 (Fla. 5th DCA 1990) opinion approved of, 585 So. 2d 928 (Fla. 1991) ("There is no provision in the Florida Evidence Code for the use of presumptions in criminal cases."). Nonetheless, cases interpreting 90.301(2) might be instructive. One court has ventured that "conclusive under the law from which they arise" means the legislature must "designate" the presumption as conclusive. See Don King Productions, Inc. v. Chavez, 717 So. 2d 1094, 1095 (Fla. 4th DCA 1998) ("Thus, it seems to us that unless the legislature specifically designates a presumption as conclusive, it is rebuttable ... ."). In Don King, the court was faced with a statute that contained several presumptions. Some of those presumptions were labeled "rebuttable" and others were not labeled. The question arose as to the absence of the term "rebuttable" in front of some presumptions rendered presumptions without that term conclusive. In further support of its decision, the Don King court pointed out that the legislature had specifically removed the term "conclusive" from early drafts of the law. However, in Sun Elastic Corp. v. O.B. Indus., 603 So. 2d 516 (Fla. 3d DCA 1992) a concurring Judge Cope wrote:90.301. Presumption defined; inferences(1) For the purposes of this chapter, a presumption is an assumption of fact which the law makes from the existence of another fact or group of facts found or otherwise established.(2) Except for presumptions that are conclusive under the law from which they arise, a presumption is rebuttable.(3) Nothing in this chapter shall prevent the drawing of an inference that is appropriate.(4) Sections 90.301-90.304 are applicable only in civil actions or proceedings.§ 90.301, Fla. Stat. Ann.
I am unable to agree with the majority's suggestion that section 542.33[(2)(a)], Florida Statutes (1991), creates what amounts to an irrebuttable presumption. The legislature used the word “presumption” without adornment; under settled Florida law, an ordinary presumption is rebuttable. § 90.301(2), Fla.Stat. (1991); see also Straughn v. K & K Land Management, Inc., 326 So.2d 421, 424 (Fla.1976). If the legislature meant to create a conclusive presumption, it knew how to say so.
The creation of section 776.013 eliminated the burden of proving that the defender had a reasonable belief that deadly force was necessary by providing a conclusive presumption of such. Fla. S. Comm. on Judiciary, CS for SB 436 (2005) Staff Analysis 5-6 (Feb. 25, 2005) (on file with comm.).
Conclusiveness of PresumptionBut the staff offered no basis for its statement. Furthermore, the staff analysis states "This Senate staff analysis does not reflect the intent or official position of the bill’s sponsor or the Florida Senate." Nonetheless, one could argue that the senators read the analysis, and thereafter voted for the bill thinking they were enacting a conclusive presumption. But is it not more likely that many senators, many of whom are lawyers, never read the staff analysis, and instead assumed they were voting for a rebuttable presumption?
Legal presumptions are typically rebuttable. The presumptions created by the committee
substitute, however, appear to be conclusive.
1 Representative Seiler offered the following:
2 3 Amendment (with title amendment)
4 On page 4, line 18,
5 remove: all of said line
6 7 and insert: an unlawful act involving force or violence. This
8 presumption may be rebutted.
9 10 ================ T I T L E A M E N D M E N T =============
11 On page 1, line(s) 10,
12 remove: all of said line
13 14 and insert: creating a rebuttable presumption that a person
15 acts with
How have cases in Florida treated the presumptions under 776.013? In one case, the court treated a presumption as rebuttable:
Here, Stieh had a right to be in the hotel room as he had lawfully rented the room for the night. The room qualified as a dwelling or residence for purposes of section 776.013.1 Only one witness, the victim, testified that he did not forcibly enter the hotel room in search of the wallets. Further, three of the witnesses testified the victim forcibly removed the appellant from the room at one point during the altercation. Thus, it appears the presumption in section 776.013(1)(a) applies to Stieh. The State's only rebuttal testimony corroborated that the victim was the aggressor and failed to rebut this presumption. See Hernandez Ramos v. State, 496 So.2d 837, 838 (Fla. 2d DCA 1986).