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Stand your ground and self-defense in Florida

Self Defense Lawyer in Tampa FL

Section 776.032(1), Fla. Stat. (2009) created statutory immunity because the legislature determined that, “it is proper for law-abiding people to protect themselves, their families, and others from intruders and attackers without fear of prosecution of civil action for acting in defense of themselves and others.” See, State v. Gallo, 37 Fla. L. Weekly D49 (2nd DCA, Dec. 30, 2011). That means a motion to dismiss can be filed in your case if you are arrested and charged while protecting yourself, another, or your property. If the court grants the motion, then your case is over. If the court denies the motion, self-defense can still be raised at trial and a qualified criminal defense lawyer will demand that the jury be instructed as to self-defense as it applies to your case.

The statute effectively “grants defendants a substantive right to assert immunity from prosecution and to avoid being subjected to a trial.” Dennis v. State, 51 So. 3d 456, 462 (Fla. 2010). Florida Rule of Criminal Procedure 3.190(b) provides the appropriate procedural vehicle for the consideration of a claim of section 776.032 immunity, Dennis, supra, at 462, and does not limit its grant of immunity to cases where the material facts are undisputed, McDaniel v. State, 24 So. 3d 654 (Fla. 2nd DCA 2009).

Fla. Stat. 776.012 describes when a person may use force to protect themselves, or another, from the imminent use of unlawful force. The statute states:

  1. A person is justified in using or threatening to use force, except deadly 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. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.
  2. A person is justified in using or threatening to use 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. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.

Fla. Stat. 776.032, provides that a person who uses force as permitted in 776.012 is immune from criminal prosecution, unless the person against whom the force was used is a law enforcement officer. This section, in pertinent part, states:

776.032. Immunity from criminal prosecution and civil action for justifiable use of force.

  1. A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law 0……..enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer.  As used in this subsection, the term criminal prosecution includes arresting, detaining in custody, and charging or prosecuting the defendant.

The wording selected by the legislature makes it clear that their intent was to establish immunity, not merely an affirmative defense. Peterson v. State, 983 So. 2d 27, 29 (Fla. 1st DCA 2008).

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