CopyCited 17 times | Published | Florida 1st District Court of Appeal
...Bolotin, Asst. Public Defender, Tallahassee, for appellant. Jim Smith, Atty. Gen., Tallahassee, Harry M. Hipler, Asst. Atty. Gen., Jacksonville, for appellee. ERVIN, Judge. In affirming the appellant/defendant's conviction, explication of Sections 590.08 and 590.15, Florida Statutes (1979), is required by determining whether the crime of unlawfully burning wild lands includes, as an element, proof that the defendant burned lands that he did not own or control....
...quittal based on the fact that the state had not proven all elements of the crime, more specifically that appellant did not own or control the land burned. The lower court relied on the state's argument in denying appellant's motion. The state cited Section 590.15, [2] which assigns the burden of *576 proof of showing the right or authority of a person to burn particular property to the defendant as an affirmative defense....
...rmative defense which a defendant may plead when he has been charged with a violation of Section 590.08, Florida Statutes. Although the foregoing section suggests that proof of lack of ownership or control of the land may be an element of the crime, Section 590.15, Florida Statutes, indicates that this factor is an affirmative defense....
...Our view is further buttressed by the operative provisions included in the enactment. Chapter 17029, Section 8, Laws of Florida (1935), is the provision that comprises the present Section 590.08, Florida Statutes (the crime), while Section 13 of the 1935 enactment comprises the present Section 590.15, Florida Statutes (the affirmative defense)....
...Ivester v. State,
398 So.2d 926, 930 (Fla. 1st DCA 1981), rev. denied,
412 So.2d 470 (Fla. 1982). By finding that proof of the lack of ownership or control of the property is an element of the crime, we would in effect be disregarding the provisions of Section
590.15, placing on defendant the burden of establishing the ownership or control of the property he burns....
...NOTES [1] Section 590.08, Florida Statutes, states: "Unlawful burning of lands. It is unlawful for any person to willfully or carelessly burn or cause to be burned, or to set fire to or cause fire to be set to, any forest, grass, woods, wild lands, or marshes not owned or controlled by such person." [2] Section 590.15, Florida Statutes, states: Burden of proof....
...ight and authority shall be a matter of affirmative defense to be alleged and proved by the defendant. [3] Section 590.08 exempts individuals who burn land that they "own or control" from the effects of the statute. In assigning the burden of proof, § 590.15, indicates the "right or authority" of one to burn property is an affirmative defense to be proven by the defendant....
