Armed Owner is Cleared in FPL Face-Off

11/17/2010


The Miami Herald - Armed Owner is Cleared in FPL Face-off           

BY DAVID OVALLEdovalle@MiamiHerald.com  November 16, 2010

Afraid of potential `significant risk' to its employees, Florida Power & Light criticized a judge's ruling in favor of a man who pulled a rifle on two FPL workers who legally entered his property.

Citing Florida's controversial ``Stand Your Ground'' self-defense law, a Miami-Dade judge Tuesday ruled a homeowner was justified in pointing a rifle at two Florida Power & Light workers who entered his rural property to shut off his electricity.

The ruling drew immediate criticism from the utility company, which under state law has the legal right to enter a property to disconnect the power.

``We are disappointed in the ruling because we feel it has the potential to put our employees in the field at significant risk,'' FPL spokeswoman Jackie Anderson said.

Circuit Judge John W. Thornton Jr. granted immunity to Ernesto Che Vino, 42, clearing him of two felony counts of aggravated assault with a firearm, and a misdemeanor count of improper exhibition of a firearm.

The judge left in place a misdemeanor count of unlawfully discharging a firearm in public -- stemming from a volley Vino fired into the air as he hustled the terrified FPL workers away.

It is too early to tell what effect, if any, the immunity ruling would have on other workers such as repo men or legal process servers who enter private property.

The controversial 2005 Stand Your Ground law eliminated a citizen's duty to retreat from a deadly threat before using deadly force themselves.

In what has proved vexing for the courts, the vaguely worded law also bestowed ``immunity'' on people protecting themselves with lethal force. The Florida Supreme Court is considering how much legal leeway judges -- instead of juries -- have in declaring defendants immune from prosecution.

Vino ``had to protect his family, his two minor daughters,'' defense attorney Alejandro De Varona said after Tuesday's ruling. ``He didn't know who these people were.''

Miami-Dade prosecutors -- who argued the case should be decided by a jury, not a judge -- are weighing whether to appeal the ruling.

In Vino's case, the incident happened on the morning of March 9, 2009, when FPL employees Bruno Berrio and Timothy Pyke traveled to Vino's trailer home at the Jones Fishing Camp, a rural trailer park at the edge of the Everglades in Northwest Miami-Dade.

Looking to collect past-due payments or shut off the power, Berrio and Pyke said they beeped their horn, and had a neighbor try to call Vino. Finally, the pair used a ladder to scale the trailer home's fence and knocked on his door, they testified.

Awakened by his barking dogs, Vino -- who said he was a former Navy sniper -- rushed out of the home, wielding a rifle.

Pyke and Berrio, both in FPL uniform, told police that Vino confronted them and they immediately identified themselves as FPL employees.

Then Vino -- still pointing his gun -- ``marched them'' off his property, slapping the helmet off Pyke before shooting the rifle in the air as the terrified men scrambled back over the fence, they testified.

But the judge discounted the FPL employees' version, instead siding with Vino, who in an Aug. 19 hearing testified that he had been the victim of a vicious beating-burglary in the past. So when two strange men appeared, he said, he wielded his rifle and confronted them.

``Mr. Vino, upon recognizing that Mr. Pyke and Mr. Berrio were FPL employees, lowered his weapon and asked [them] why didn't they call him before entering his property,'' Judge Thornton wrote in his ruling, adopting the defendant's more benign version of events.

Vino ``escorted'' them to the fence before he fired ``one shot, not at Mr. Pyke or Mr. Berrio, but up in the air,'' Thornton wrote.

The judge ruled that Vino was immune from prosecution ``up to the point where he realized the two reasonably believed burglars were in fact FPL workers,'' meaning the shot fired in the air could still be an unlawful discharge.

Prosecutors believed the entirety of Vino's conduct amounted to aggravated assault, a third-degree felony punishable by up to five years in prison.

Tuesday's immunity ruling was not the first in Miami-Dade since the law passed.

In February, Circuit Judge Beatrice Butchko ruled that Miami Dade College student Jordenis Arevalo-Alvarez was justified in arming himself after he was beaten by a man on the first-floor of his apartment complex.

The bloodied Arevalo-Alvarez ran back to his apartment and armed himself with a gun when he heard a pounding at the door. He flung the door open, only to find a female neighbor upset her window had been broken in the scuffle. Arevalo-Alvarez was arrested for aggravated assault, for briefly pointing the gun at the young woman before realizing who she was.

So far, no Miami-Dade judges have granted immunity to defendants charged with murder.

Read more: http://www.miamiherald.com/2010/11/16/1929577/armed-owner-is-cleared-in-fpl.html#ixzz15ZynDFUu

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