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Failing to Feed Your Dog–Misdemeanor or Felony?

puppy4.jpgWe criminal defense attorneys see lots of unpopular cases, one of which is cruelty to animals. I’ve seen Orlando animal cruelty charges receive stiffer sentences than child abuse cases. Hum….But, it’s a fact that we Americans love our pets (especially puppies, who doesn’t love puppies?). It goes without saying that some of our pets live better–eat better–than people living in third world countries.

Today’s focus is really not pets, it’s statutory analysis. A decent example of statutory analysis involves this question: when a dog is not fed properly, is this a misdemeanor offense or a felony offense? The decision hinges on statutory interpretation, and begins with Florida Statute 828.12(1), which makes it only a misdemeanor to unnecessarily deprive a dog of necessary nutrition. But, subsection (2) makes it a felony to “intentionally [commit] an act to any animal which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering”. So, where do undernourishment cases fall, under subsection (1) which is a misdemeanor, or the felony subsection (2)?

Lucky for us, the Second District Court of Appeals addressed this issue recently in State of Florida v. Morival, 75 So.3d 810 (Fla. 2nd DCA 2011). Animal service workers found two dogs caged inside Mr. Morival’s apartment that were severely undernourished, without food or water. This led to Morival’s arrest for felony animal abuse. When confronted with the abuse, Morival merely cited financial issues as the problem. The court reviewed the pictures of these two dogs, and described them as “skin and bones”. That being said, Morival’s attorney filed for dismissal, reasoning that failing to feed a dog is only a misdemeanor, as per subsection (1) above. The trial court agreed and dismissed all charges, but the state appealed.

The appeals court overturned the trial court, agreeing with the state that the malnutrition could, actually, constitute a felony under the circumstances. Subsection (2) finds “repeated infliction of unnecessary suffering” to be a felony, and depriving a dog of food and water repeatedly could constitute such a felony charge. The court put it this way, “the legislature properly distinguished between cases in which an owner fails, for example, to provide food for a dog for a few days while the owner goes on vacation–which is surely no more than depriving the dog of necessary sustenance–and cases in which an owner does not feed a dog or feeds a dog so little that it suffers malnutrition over an extended period such that the animal loses a high percentage of its normal body weight.” There you have it…now you know.