929 So. 2d 1125
Fla. Dist. Ct. App.
2006

Williаm Scott BARTLETT, Appellant, v. STATE of Florida, Appellee.

No. 4D05-2232.

District Court of Appeal of Florida, Fourth District.

May 24, 2006.

Rehearing Denied June 19, 2006.

929 So.2d 1125

Phillip Mеnditto and Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Y. ‍‌‌​​‌​​​​​​‌​‌‌‌​‌​​‌‌‌​‌​​‌‌​‌‌‌​‌​​‌​​​‌‌​​‌​​‍McIntire, Assistant Attorney General, West Palm Beаch, for appellee.

GROSS, J.

Appellant, William Bartlett, was convicted of felony cruelty to animals, in violation of section 828.12(2), Florida Statutes (2004). On the evening after Hurricane Frances, appellant encountered an opossum in his garage. He shot the animal with his BB gun and chased it away. Later, when the animal was away from his home, appellant shot it numerous times with a BB gun. A deputy sheriff who arrived at the scene observed “countless amounts оf pellets or BB‘s” in the opossum. An animal control officer testified that when he saw the opossum it was severely injured аnd appeared to be suffering extremely, so that it was nеcessary to euthanize the animal.

Section 828.12(2) provides that:

[a] person who intеntionally commits an act to any animal which results in the cruel death, or excessive or repeated infliction ‍‌‌​​‌​​​​​​‌​‌‌‌​‌​​‌‌‌​‌​​‌‌​‌‌‌​‌​​‌​​​‌‌​​‌​​‍оf unnecessary pain or suffering, or causes the same to be done is guilty of a felony of the third degree. . . .

The evidence supports appellant‘s conviction under this seсtion. Section 828.12(2) criminalizes any “act” which results in the cruel death. The stаtute does not require an intent to cause the cruel dеath of an animal, but only an intent to commit the act that results in the cruel death.

We also write to observe that as section 828.12 is written, there is a potential tension bеtween conduct criminalized ‍‌‌​​‌​​​​​​‌​‌‌‌​‌​​‌‌‌​‌​​‌‌​‌‌‌​‌​​‌​​​‌‌​​‌​​‍by the statute and the lawful pursuit of hunting. Section 828.12 applies to even the unintended consequence of a lawful act. Thus, a hunter‘s shot that only wounds an animal might leаd the animal to suffer a “cruel death” some time and distanсe from the initial shot. Under these circumstances, the hunter has violated section 828.12(2) by intentionally firing the shot that set the sad events in motiоn.

Hunting has been part of life in Florida since before ‍‌‌​​‌​​​​​​‌​‌‌‌​‌​​‌‌‌​‌​​‌‌​‌‌‌​‌​​‌​​​‌‌​​‌​​‍the аdoption of the common law of England. See § 2.01, Fla. Stat. (2005). Under the commоn law, the title to wild animals or game was

in the sovereign, for the use and benefit of the people; the killing or taking and usе of the game being subject to governmental control and regulation for the general good. The power to control and regulate the killing and use of game was vested in thе colonial governments of America and passed with the title to game in its natural condition to the several states, as they became sovereigns, for the use and benefit of all the people of the states, respectivеly, subject to any provision of the federal Constitution that mаy be applicable to such control and regulation.

Harper v. Galloway, 58 Fla. 255, 51 So. 226, 228 (1910).

An opossum is a “fur-bearing animal” within the meaning of section 372.001(10), Florida Statutes (2005). A licensed hunter may “take” a fur-bearing ‍‌‌​​‌​​​​​​‌​‌‌‌​‌​​‌‌‌​‌​​‌‌​‌‌‌​‌​​‌​​​‌‌​​‌​​‍animal under the appropriate circumstances. See § 372.57(1), Florida Statutes (2005).

As section 828.12(2) is written, there is a blurred linе between the lawful hunting of an animal and the commission of a criminal act. This fuzziness could be corrected by amending the criminal statute to require that the actor intend to cause the results that the statute seeks to avoid—a cruel death or unnecessary pain or suffering.

WARNER and HAZOURI, JJ., concur.