       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                       CATHERINE M. PILEGGI,
                            Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D15-2780

                           [November 8, 2017]

  Appeal and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; John D. Fry, Judge; L.T. Case No. 11-
11540CF10A.

   Bruce L. Udolf of Bruce L. Udolf, PA, Fort Lauderdale, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy,
Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, J.

    Catherine Pileggi (“Defendant”) appeals her judgment of conviction for
second degree murder. Defendant raises two arguments on appeal: (1) the
trial court erred in denying her motion for judgment of acquittal; and (2)
she was denied due process by not being given the opportunity to perform
an independent autopsy. The State cross-appeals, arguing that in the
event of reversal, the court improperly denied the State’s request to limit
the jury instruction on the justifiable use of deadly force. We affirm
Defendant’s conviction without further comment. Recognizing that our
decision on Defendant’s appeal renders the State’s cross-appeal moot, we
nonetheless address the State’s contention that the justifiable use of
deadly force instruction as given was wrong.

    Defendant was charged with the murder of her longtime boyfriend. At
trial, Defendant admitted that she shot and stabbed the Victim, but
claimed that she was a battered woman and did so in self-defense. Both
sides presented substantial evidence to support their respective positions.
Because self-defense was an issue, when it came time to charge the jury,
the court read the following instruction which was modeled after Standard
Jury Instruction 3.6(f):

      An issue in this case is whether the defendant acted in self-
      defense.

      It is a defense to the crime of murder in the second degree and
      to the lesser included crime of manslaughter if the actions of
      [Defendant] constituted the justifiable use of deadly force.

      Deadly force means force likely to cause death or great bodily
      harm.

      The use of deadly force is justifiable if the defendant
      reasonably believed that such force is necessary to prevent
      imminent death or great bodily harm to her while resisting:

         1) Another’s attempt to murder her; or

         2) Any attempt to commit manslaughter or aggravated
            assault upon her; or

         3) Any attempt to commit manslaughter or aggravated
            assault upon or in any dwelling occupied by her.

      [Defendant] was justified in using deadly force if she
      reasonably believed that such force was necessary to prevent
      imminent death or great bodily harm to herself or the
      imminent commission of a forcible felony such as first degree
      murder or second degree murder or manslaughter against
      her.

      If [Defendant] was not otherwise engaged in unlawful activity
      and was in a place she had a right to be, then she had no duty
      to retreat and had the right to stand her ground.

    This instruction was based, in part, on the wording of section 782.02
of the Florida Statutes which provides that:

      The use of deadly force is justifiable when a person is resisting
      any attempt to murder such person or to commit any felony
      upon him or her or upon or in any dwelling house in which
      such person shall be.


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§ 782.02, Fla. Stat. (2010).

   It was also based, in part, on the “Stand Your Ground” law. As it read
in 2010, section 776.012 of Florida’s Stand Your Ground law stated, in
pertinent part:

      [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 to prevent the
             imminent commission of a forcible felony; or

         (2) Under those circumstances permitted pursuant to s.
             776.013.

§ 776.012, Fla. Stat. (2010).

   To that end, section 776.013(3) of the Stand Your Ground law stated:

      A person who is not engaged in unlawful activity and who is
      attacked in any other place where he or she has a right to be
      has no duty to retreat and has the right to stand his or her
      ground and meet force with force, including deadly force if he
      or she reasonably believes it is necessary to do so to prevent
      death or great bodily harm to himself or herself or another or
      to prevent the commission of a forcible felony.

§ 776.013(3), Fla. Stat. (2010).

    The State does not dispute that the standard jury instruction given
accurately tracks the language of section 782.02 and the Stand Your
Ground law, but argues that the inclusion of language tracking section
782.02 was incorrect. The State’s position is based on its argument that
the Stand Your Ground law “revised the subject matter” of section 782.02
and in doing so, “implicitly” replaced and repealed section 782.02.
Specifically, the State argues that section 782.02 is “positively repugnant”
with the Stand Your Ground law because section 782.02 does not contain
the adjective “imminent” when referencing the threat to the person using
self-defense nor does it require a “forcible felony” as referenced in the
Stand Your Ground law. We disagree.



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    It is well settled that “repeal of a statute by implication is not favored
and will be upheld only where irreconcilable conflict between the later
statute and earlier statute shows legislative intent to repeal.” Town of
Indian River Shores v. Richey, 348 So. 2d 1, 2 (Fla. 1977). The Stand Your
Ground law essentially establishes that a person has no duty to retreat
and may use deadly force if he or she reasonably believes deadly force is
necessary. § 776.012, Fla. Stat. (2010); § 776.013(3), Fla. Stat. (2010).
Section 782.02, in turn, echoes the reasonableness element of Stand Your
Ground Law by providing that the use of deadly force is justified “when a
person is resisting any attempt to murder such person or to commit any
felony upon him or her.” § 782.02, Fla. Stat. (2010).

   We hold that the two statutes are not irreconcilable and, indeed,
compliment each other. Our holding is based on the well-established
principle that it is reasonable for a person subject to a felonious attack to
believe deadly force is necessary to stop oneself from being killed or prevent
serious bodily injury. Our conclusion that there is no conflict in these
laws has been tacitly recognized by courts considering the adequacy of
standard instruction 3.6(f). See Cruz v. State, 189 So. 3d 822, 831 (Fla.
4th DCA 2015) (holding that “the standard instruction on the justifiable
use of deadly force is a correct statement of the law”); Wyche v. State, 170
So. 3d 898, 905 (Fla. 3d DCA 2015) (“Jury Instruction 3.6(f) is an accurate
statement of the law on the use of deadly force, and there is no conflict
between any of the sections contained in Chapter 776 or any conflict
within Jury Instruction 3.6(f).”). Accordingly, the court did not err in giving
the standard jury instruction on the justifiable use of deadly force.

   Affirmed.

CONNER and FORST, JJ., concur.

                             *        *         *

   Not final until disposition of timely filed motion for rehearing.




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