Third District Court of Appeal
State of Florida
Opinion filed April 26, 2023.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D23-0682
Lower Tribunal No. F22-15401
________________
Liliana Francisca Vanegas,
Petitioner,
vs.
The State of Florida,
Respondent.
A Case of Original Jurisdiction – Habeas Corpus.
The Law Office of Lance Joseph, and Lance Joseph (Dade City), for
petitioner.
Ashley Moody, Attorney General, and Kseniya Smychkouskaya,
Assistant Attorney General, for respondent.
Before LOGUE, MILLER, and BOKOR, JJ.
MILLER, J.
Petitioner, Liliana Francisca Vanegas, seeks a writ of habeas corpus,
ordering her immediate release from the county jail, where she is being held
without bond on the basis that she violated her probation by committing the
offense of interference with child custody, in violation of section 787.03(1),
Florida Statutes (2022). She contends she is being illegally detained
because she did not commit a criminal act. For the reasons that follow, we
are constrained to deny relief.
BACKGROUND
Given the procedural posture, the facts are undisputed. Petitioner is
married to Juan Gayle, and the couple shares a three-year-old son. While
she was on felony probation for one count of grand theft, Gayle filed an ex
parte petition for injunction for protection against domestic violence pursuant
to section 741.30, Florida Statutes (2022). The domestic violence court
entered a temporary injunction the same day. Under the terms of the
injunction, petitioner was prohibited from having any contact with Gayle or
the minor child. Petitioner moved to modify the terms of the injunction, and
the court granted petitioner supervised visitation through Family Court
Services.
After the court entered the supervised visitation order, Gayle dropped
the child off at Angel Speech and Therapy (“AST”) for a speech and
2
occupational therapy appointment. Petitioner then retrieved the child from
Elisa Matos, his speech pathologist, bought him ice cream, and returned him
to the therapy center. Shortly thereafter, Gayle picked up the child and
learned of the outing. He contacted law enforcement, and some months
later, petitioner was arrested. The State filed a misdemeanor information
charging her with one count of violating a domestic violence injunction, in
violation of section 741.31(4)(a), Florida Statutes (2022). The Department
of Corrections filed a probation violation affidavit alleging she violated her
probation.
Petitioner was taken into custody and held without bond pending a
probation revocation hearing. She subsequently moved to dismiss the
information, but prior to a hearing, the State filed a superseding felony
information charging her with one count of interference with child custody, in
violation of section 787.03(1). The information reads as follows:
LILIANA FRANCISCA VANEGAS, on or about March 24, 2022,
in the County and State aforesaid, did without lawful authority,
knowingly or recklessly take or entice or aid, abet, hire, or
otherwise procure another to take or entice, a minor, to-wit: D.G.,
from the custody of the minor’s parent, guardian, public agency
having the lawful charge of the minor or incompetent person, or
any other lawful custodian, to-wit: ELISA MATOS, in violation of
[section 787.03(1)], contrary to the form of the Statute in such
cases made and provided, and against the peace and dignity of
the State of Florida. 1
1
Gayle’s name does not appear in the information.
3
Petitioner again filed a motion to dismiss. Distilled to its essence, her
argument was two-fold: (1) section 787.03(1) does not apply to a natural
parent whose parental rights remain intact; and (2) a violation of a supervised
timesharing order does not constitute a criminal offense. The State filed a
demurrer and argued that petitioner committed a crime because she
interfered “with Juan Gayle’s 100% timesharing,” and section 787.03(1) is
equally applicable to natural parents. The trial court denied the motion, and
the instant petition ensued.
ANALYSIS
Article I, section 13 of the Florida Constitution provides that “[t]he writ
of habeas corpus shall be grantable of right, freely and without cost.” Art. I,
§ 13, Fla. Const. “By way of the writ, courts are afforded a speedy method
of conducting a ‘judicial inquiry into the cause of any alleged unlawful
custody of an individual or any alleged unlawful, actual deprivation of
personal liberty.’” Parks v. State,
319 So. 3d 102, 105 (Fla. 3d DCA 2021)
(quoting Porter v. Porter,
53 So. 546, 547 (Fla. 1910)). This court and others
have repeatedly tested the legality of a detention premised upon a pending
probation revocation hearing through habeas corpus. See, e.g., Baroulette
4
v. McCray,
904 So. 2d 575, 576–77 (Fla. 3d DCA 2005); McCarthy v. Jenne,
861 So. 2d 99, 99 (Fla. 4th DCA 2003). Similarly, “[w]here an indictment or
information entirely fails to charge a criminal offense[,] the accused may test
the sufficiency thereof in habeas corpus proceedings.” Kittleson v. State,
9
So. 2d 807, 807 (Fla. 1942).
As with any statutory analysis, we adhere to the cardinal rule that to
ascertain and effectuate the intent of the legislature, courts must give the
words found in the statute their plain and ordinary meaning and, in the
absence of ambiguity, refrain from resorting to canons of construction. See
Anderson v. State,
87 So. 3d 774, 777 (Fla. 2012). We therefore “begin ‘with
the language of the statute,’ and, here, because that ‘language provides a
clear answer, [our analysis] ends there as well.’” Sch. Bd. of Miami-Dade
Cnty. v. Fla. Dep’t of Health,
329 So. 3d 784, 787 (Fla. 3d DCA 2021)
(internal quotation marks omitted) (quoting Hughes Aircraft Co. v. Jacobson,
525 U.S. 432, 438 (1999)).
Section 787.03 sets forth two separate third-degree felonies, both of
which constitute “interference with custody.” Petitioner was charged with
violating the first offense, which is described as follows:
Whoever, without lawful authority, knowingly or recklessly takes
or entices . . . any minor . . . from the custody of the minor’s . . .
parent, his or her guardian, a public agency having the lawful
5
charge of the minor[,] . . . or any other lawful custodian commits
the offense of interference with custody . . . .
§ 787.03(1), Fla. Stat. The second part of the statute criminalizes parental
interferences with custody in the following manner:
In the absence of a court order determining rights to custody or
visitation with any minor[,] . . . any parent of the minor . . . who
has custody thereof and who takes . . . or entices away that
minor . . . within or without the state with malicious intent to
deprive another person of his or her right to custody of the minor
. . . commits a felony of the third degree . . . .
§ 787.03(2), Fla. Stat.
Petitioner contends that, in the absence of a termination of parental
rights, a natural parent may only be charged under the latter portion of the
statute. She posits that to find otherwise would be to allow the State to do
an improper end-run around the malicious intent scienter requirement,
diluting the burden of proof.
This argument is persuasive. The statute is hardly a model of clarity
and contains no definition section. A cursory reading might suggest that
parental interference cases are uniquely relegated to the second part of the
statute. Indeed, this court and a sister court have observed in passing that
“[s]ection 787.03(1) prohibits interference with parental custody by a person
who is not a parent or lawful custodian of the minor child in question.”
Lindemuth v. State,
247 So. 3d 635, 638 (Fla. 3d DCA 2018); see also State
6
v. Earl,
649 So. 2d 297, 298 (Fla. 5th DCA 1995) (“Although very poorly
written, it appears that subsection (2) of section 787.03, added in 1987, is
designed to govern the crime of interference with custody by a parent.”).
This perspective is reinforced by the fact that another statute, section
787.04(1), Florida Statutes (2022), criminalizes taking a child “beyond the
limits of this state” or concealing “the location of a minor” in violation of a
court order.
But, upon closer reading, section 787.03(1) is extraordinarily broad in
scope. By its plain language, the statute targets “[w]hoever” interferes with
custody. This word necessarily has a comprehensive meaning and does not
lend itself to any restrictive interpretation. As there is no explicit parental
exemption, any person, including a parent, falls within the ambit of the
statute.
Consistent with this view, our research has revealed several published
opinions involving parental prosecutions commenced under section
787.03(1). None, of course, involve an act as inconsequential as that
forming the basis for prosecution in this case. See Khan v. State,
704 So.
2d 1129, 1130–31 (Fla. 4th DCA 1998) (reversing father’s conviction for
interfering with custody of child under section 787.03(1) but affirming
conviction under section 787.04(1) where father removed minor from state
7
when he moved to Pakistan with daughter in violation of court order); Arroyo
v. State,
705 So. 2d 54, 56–57 (Fla. 4th DCA 1997) (reversing and
remanding mother’s conviction under section 787.03(1) where State
presented no evidence of mother’s participation in taking her children from
lawful custodian where evidence demonstrated only mother’s presence in
vehicle at the time her husband drove their children to Mexico). Relying upon
the plain language, we conclude that the statute is applicable, and the mere
fact that two alternative statutory provisions contain heightened proof
requirements does not render the instant charge invalid.2
Further, we are compelled to reject the contention that an award of
shared parental responsibility and supervised timesharing renders the State
incapable of proving petitioner acted “without lawful authority” within the
meaning of the statute.3 By court order, petitioner was only authorized to
2
It requires little imagination to envision the “parade of horribles” likely to
result from criminalizing negligible and inadvertent deviations from court
ratified timesharing agreements in high-conflict family disputes.
3
Although courts have long distinguished between temporary and
permanent custody awards under common law principles, this is a case of
pure statutory interpretation. See, e.g., Adams v. State,
126 S.E.2d 624,
625–26 (Ga. 1962) (“The parental rights of the parties are not adjudicated by
the award of temporary custody. A temporary award of custody differs from
a permanent award as the latter is a final adjudication of the rights of the
parties . . . . No such finality exists as to a judgment awarding temporary
custody.”); People v. Fields,
300 N.W.2d 548, 550 (Mich. Ct. App. 1980),
superseded by statute,
Mich. Comp. Laws § 750.350 (1983) (“We disagree
8
access the child at visitation appointments supervised by Family Court
Services. Retrieving the child from therapy and taking him on an outing
appears to have been in derogation of those conditions.
Lastly, to the extent that the State is alleged to have stretched the
acceptable boundaries of prosecutorial discretion and the case more
properly belongs in family court, at least one court has embraced that view.
In State v. Wengatz,
471 N.E.2d 185, 186 (Ohio Ct. App. 1984), the
government filed criminal charges after a mother defied an existing custody
order and traveled to Walt Disney World Resort with her young children for
two weeks. The Ohio appellate court observed: “a more appropriate method
of handling the father’s complaint would have been by a contempt
proceeding in domestic relations court. To put a mother in jail for two years
for giving her children a vacation is a gross miscarriage of justice and totally
senseless.”
Id. at 187. Here, the mother has been jailed for over nine
months for a substantially less egregious deviation.
with the people’s position that it is the very existence of a court order rather
than the temporary or permanent nature of the order which determines
whether a kidnapping has in fact occurred. There is a crucial difference
between a parent who has temporarily lost custody of a child and one who
has permanently lost parental rights. A parent whose rights remain
undecided at the time of the taking may not have any right to custody, but
we are of the opinion that temporary loss of physical possession of the child
is not the proper basis for decision.”).
9
Nonetheless, it is well-settled that “[p]rosecutorial discretion is by its
very nature exceedingly broad,” In re J.S.,
19 A.3d 328, 331 n.2 (D.C. 2011)
(alteration in original) (quoting United States v. Wilson,
342 A.2d 27, 30
(D.C.1975)), and the judiciary is powerless in habeas proceedings to
interfere in the decision to charge an individual for a de minimis offense. But
see, e.g., People v. Page,
353 N.Y.S.2d 358, 360–61 (N.Y. Town Ct. 1974)
(holding accusatory portion of information sufficient but factual portion of
information defective for failure to contain evidentiary matter to show intent
of crime of custodial interference); State v. Switzer,
157 N.E.2d 466, 467–68
(Ohio Mun. 1956) (dismissing complaint and discharging defendant father
where evidence was insufficient to establish father’s intent to unlawfully
detain child). Accordingly, we are obliged to deny relief.
Petition denied.
10
