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Criminal Defense Blog

Thursday, May 17, 2018

Stand Your Ground Defense

Florida Statute 776.032 provides for criminal and civil immunity for those who justifiably use or threaten to use force in self-defense. Effective June 9, 2017, the statute was revised which arguable makes the prosecuting those claiming self-defense even more difficult. Florida’s law enforcement officers are now not only required to determine if there was probable cause for arrest based on the use of force, but also to determine if the force used was unlawful. Therefore, law enforcement officers must conduct a more thorough investigation and analysis to determine not only if force was used, but the nature and character of that force. Florida’s officers cannot “leave it to the courts” to figure out.

Prior to the 2017 revision, a defendant was required to prove by a preponderance of evidence that he or she was entitled to immunity. The 2017 amendment now requires that a criminal defendant charged with using force merely establish a prima facie case of self-defense in a pre-trial immunity hearing. This very low burden is essentially met when a criminal defendant establishes a colorable argument that the force threatened or used was in self defense. Once met, the State is then required to prove by “clear and convincing evidence” that the defendant is not entitled to immunity. The “clear and convincing evidence” standard lies between the preponderance of evidence standard – more likely than not – and proof beyond a reasonable doubt. According to The Florida Supreme Court, this standard is an intermediate level of proof: “The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.” See Owens-Corning Fiberglas Corp. v. Ballard, 749 So. 2d 483 (Fla. 1999), citing In re Adoption of Baby E.A.W., 658 So. 2d 961, 967 (Fla. 1995).  Essentially, the revised statute creates a rebuttable presumption of immunity that can be overcome by clear evidence to the contrary.

The question of whether the June 2017 amendment has retrospective application or not is currently at question. While the Second District Court of Appeal, which has jurisdiction over the 12th Circuit, held on May 4, 2018, held that the amendment is procedural and therefore retroactive, the Third District Court of Appeal held on May 11, 2018, held that the revision amounts to a substantive change in the law, and is therefore, not retroactive. The issue has been certified to the Florida Supreme Court as a result of the split in the Districts.




Mr. Eisenberg is one of only a handful of criminal defense attorneys in all of Sarasota County who has been recognized by the Florida Bar as a Board Certified Criminal Trial Expert.



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