A Parent Can Kidnap his/her Own Child

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DAVILA v. STATE, 36 Fla. L. Weekly S579a (Fla. Oct 6, 2011) – Application for Review of the Decision of the District Court of Appeal – Certified Direct Conflict of Decisions. This case is before the Court for review of the decision of the Third District Court of Appeal in Davila v. State, 26 So. 3d 5 (Fla. 3d DCA 2009). The district court certified that its decision is in direct conflict with the decision of the Second District Court of Appeal in Muniz v. State, 764 So. 2d 729 (Fla. 2d DCA 2000).

The conflict issue before us centers on whether a parent can lawfully be convicted of kidnapping his own child under section 787.01, Florida Statutes (2000). For the reasons expressed below, we approve the decision of the Third District in Davila to the extent that it held that a parent can be criminally liable for kidnapping his own child pursuant to section 787.01 under certain circumstances, but disapprove the reasoning and analysis of the district court. We also disapprove the decision of the Second District in Muniz.

The conflict issue in this case centers on whether section 787.01, Florida Statutes (2000), provides a basis to convict a parent of kidnapping his or her own child as the term “kidnapping” is defined in the statute. This question turns in large part on the legal effect of subsection (1)(b) of that statute. The interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review.  A court’s purpose in construing a statute is to give effect to legislative intent, which is the polestar that guides the court in statutory construction. We look primarily to the actual language used in the statute to discern legislative intent. When the language of the statute is clear and unambiguous and conveys a clear and definite meaning the statute must be given its plain and obvious meaning. Further, we are without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. The unambiguous language of section 787.01, Florida Statutes (2000), does not exempt a parent from criminal liability for kidnapping his or her own child. Thus, by its own terms, section 787.01 permits Davila to be legally convicted of kidnapping R.D.

It is our view that if the Legislature intended to exempt a parent from criminal liability for kidnapping his or her own child, it would have expressly stated so. We trust that if the Legislature did not intend the result mandated by the plain and unambiguous language of section 787.01, the Legislature itself will amend the statute. Until such time, we hold that a parent is not exempt from criminal liability for kidnapping his or her own child under section 787.01, Florida Statutes (2000).

Eric J Dirga, PA

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