Orlando DUI Lawyer - Florida DUI Charges Attorney Chad Frost
Florida DUI: Frequently Asked Questions
May 30, 2018
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Orlando Criminal Defense Lawyer

Stand Your Ground is changing and has recently been the subject of great debate because the Florida Legislature and the Florida Courts are battling it out.

How Is Stand Your Ground Proven?

As a basic procedural principal, in a criminal trial, the State of Florida (the prosecution) must prove every element of the alleged crime beyond a reasonable doubt. Prior to the recent changes, if a defendant raised the affirmative defense of self-defense by standing his ground (he or she claims to have had no alternative but to use deadly force to defend him or herself), the defendant had to prove self-defense was reasonable, necessary, and justified.

With the changes to Stand Your Ground in FL, during pre-trial hearings, the State of Florida, not the defendant, must now show that self-defense by the defendant standing his ground was not justified. Essentially, the burden of proof has shifted from the Defendant having to justify his claim of self-defense, to the prosecution having to prove why self-defense was both unnecessary and unlawful.

Previously, the burden of proof was on the Defendant. For example, in Leasure v. State, 105 So. 3d 5 (Fla. 2nd DCA 2012), the Second District Court of Appeals affirmed that the; “Trial court did not err in denying defendant’s motion to dismiss a second-degree murder charge pursuant to the ‘Stand Your Ground’ law as defendant did not meet her burden of proving that she reasonably believed it was necessary to use deadly force to prevent the victim from inflicting death or great bodily harm.

Defendant related several inconsistent versions of events, and her testimony that, after the first shot grazed the victim’s head, she shot him two times in rapid succession as he came at her was contradicted by the testimony of the medical examiner.” The Leasure Court further ruled: “whether she reasonably believed it was necessary to use deadly force and whether she acted with the requisite ill will, hatred, spite, or an evil intent were appropriate questions for the jury to determine.”

Contrast that decision from 2012 with the new changes to the law that require the State to prove the defendant was unjustified in using self-defense. Clearly, the changes to Stand Your Ground allow criminal defendants a better chance at being acquitted of their alleged crimes. Defendants now seem to have been afforded greater protection against criminal charges.

When Does The Florida Stand Your Ground Law Apply?

Recently, Miami-Dade Circuit Judge Milton Hirsch ruled that the modified Stand Your Ground Law is unconstitutional. According to Hirsch’s written order, the Florida Legislature does not have the constitutional authority to change Stand Your Ground. Any modifications should instead be made by the Florida courts, and specifically by the FL Supreme Court upon appeal. Hirsch wrote that this is a clear “constitutional separation of powers” issue, and one that has created a protentional constitutional violation by the Legislature. The mechanics of Florida law are indeed complex.

In response, as one might have anticipated, the NRA has deemed Judge Hirsch an “activist judge” that favors the prosecution.

In order to provide clarity, please find below the most pertinent portions of Florida Statute § 776.013, also known as the Florida Stand Your Ground Statute. Along with my commentary, the Statute itself provides the circumstances and situations in which the use of force may be justified in self-defense. The use of force may be justified specifically when applied to the protection of one’s dwelling, residence or occupied vehicle, when the use or threatened use of deadly force is necessary, and when there is a fear of death or great bodily harm to oneself or to others.

As I review the specific provisions of Fla. Stat. § 776.013, some historical and legal context will be provided to offer you a better understanding of the Stand Your Ground Statute and how it may impact the facts and circumstances of your case(s).

Fla. Stat. § 776.013(1) “A person who is in a dwelling or residence in which the person has a right to be has no duty to retreat and has the right to stand his or her ground and use or threaten to use:

(a) Nondeadly force against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force.” This is an objective reasonable person test. The court will analyze whether the defendant had the right to use nondeadly force on a case-by-case basis which is a fact specific inquiry.

(b) Deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.” By forcible felonies, the courts mean crimes such as robbery and armed burglary. The question is whether a reasonable person in the position of the defendant, would believe his or her life or the life and safety of another was in danger at the time they were confronted with deadly force or immediate bodily harm by an intruder. This is a topic that was heavily litigated and placed into the full view of the public during the now infamous George Zimmerman trial for the death of Trayvon Martin.

Fla. Stat. § 776.013 (2) “A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using or threatening to use defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used or threatened was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses or threatens to use defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.”

As you read the language of the statute, consider in your mind what situations would cause you to believe your life would be in danger. How would you react to a person forcing his way into your home, or your car? How would you react and what level of force would you, the objective reasonable person feel is necessary to prevent a someone from harming yourself, or a loved one? This is why cases that involve the Stand Your Ground Law are so heavily litigated.

Further provisions of the FL Stand Your Ground Statute go on to define what a dwelling, a residence, and a vehicle is according to Florida law. I have provided some further explanations to clarify the terms.

Fla. Stat. § 776.013 (5) As used in this section, the term:

(a) “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

Often, Florida lawyers use the term “dwelling” to describe the place where people sleep at night. It is the place where one would expect to find a person in order to serve process on the opposing party for a lawsuit.

(b) “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

A residence is a home, an apartment, a condominium, villa, coop, etc.

(c) “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

In layman’s terms, vehicle refers to cars, motorcycles, RVs, and other vehicles commonly used for transportation.

Ultimately, Florida’s Stand Your Ground Law is being hotly contested in the court of public opinion, and in the courts themselves.

If you or someone you know is facing a weapons charge, contact Frost Law at (407) 670-5569 for a free consultation and review of your case.

Chad Frost
Chad Frost
As a criminal defense attorney, he is proud to handle all kinds of criminal cases and committed to giving his clients the compassionate personal attention and aggressive representation they need to protect their rights and freedoms.