Legal Defenses in Florida Criminal Law
In any criminal case, the first issue is whether the prosecutor for the State of Florida can prove every element of the criminal offense. At its most basic level, the prosecutor must determine:
“Did a crime occur, and was the defendant the one who committed the crime?”
Even when the prosecutors for the State of Florida can prove that the criminal offense occurred, the defendant may still be able to avoid a finding of guilt if a justification, excuse, factual defense, or procedural defense can be established under Florida law.
Attorney for Legal Defenses in Tampa, FL
If you need to speak with a criminal defense attorney with offices in Tampa, FL, then contact an attorney at Sammis Law Firm. You can schedule a consultation either over the phone or in the office.
Our criminal defense attorneys are experienced in asserting a variety of affirmative defenses such as self-defense, necessity, duress, entrapment, intoxication, or good faith. We represent clients throughout the greater Tampa Bay area, including Hillsborough County, Pasco County, Polk County, and Pinellas County, FL.
Call (813) 250-0500.
Overview of Legal Defenses in Florida
- Affirmative Criminal Defenses – Justifications and Excuses
- Different Types of Criminal Defenses
- Procedural Criminal Defenses
- Factual Defenses
- Motion Hearings
- Additional Resources
Affirmative Criminal Defenses – Justifications and Excuses
For affirmative defenses used during a jury trial, the defendant must present some evidence supporting an affirmative defense before the Court is required to instruct the jury on the defense. If the defendant presents sufficient evidence to warrant the instruction, then the jury is instructed on the defense.
In most self-defense cases, the defendant will request and should receive a special jury instruction on both deadly and non-deadly use of force for self-defense.
Deadly force used for self-defense typically involves the use of a weapon, such as a baseball bat, a knife, or a firearm. On the other hand, non-deadly force for self-defense typically involves pushing, punching, or striking another person.
Any weapon can theoretically be used in a deadly or non-deadly manner for self-defense purposes. The only type of scenario under Florida law that may qualify as deadly force as a matter of law is when a firearm is discharged or fired.
For almost every other factual scenario, both the Florida deadly and non-deadly force self-defense instruction should be read to the jury.
Different Types of Criminal Defenses
Use of Non-deadly Force in Self-defense – A person is justified in using or threatening to use non-deadly force against another if they reasonably believe such conduct is necessary to defend themselves or another against the imminent use of unlawful force. No duty to retreat exists if the person is in a place where they have a lawful right to be.
Defense of Others – A person may use reasonable force, including non-deadly or deadly force, to defend another individual if they reasonably believe that the other person is under imminent threat of unlawful force or serious bodily harm, and that the defensive force is necessary under the circumstances.
Defense of Property – A person is justified in using or threatening to use non-deadly force when and to the extent they reasonably believe such force is necessary to prevent or terminate another’s trespass or interference with real or personal property. Deadly force may only be used if preventing the imminent commission of a forcible felony.
Use of Deadly Force in Self-defense – A person is justified in using deadly force if they reasonably believe such force is necessary to prevent imminent death or great bodily harm to themselves or another, or to prevent the imminent commission of a forcible felony. Florida’s “Stand Your Ground” law removes the duty to retreat when lawfully present.
Florida Entrapment Defense – Entrapment is a defense when law enforcement officers, through persuasion, fraud, or undue inducement, cause a person to commit an offense they were not otherwise predisposed to commit. The defense requires proof that the criminal intent originated with the government.
Involuntary Intoxication – Involuntary intoxication is a defense where the accused, without knowledge or by force, consumes an intoxicant that renders them incapable of forming the required criminal intent. This defense is recognized only in limited circumstances, such as unknowingly ingesting a drug.
Insanity – A defendant may be found not guilty by reason of insanity if, at the time of the offense, they had a mental infirmity, disease, or defect such that they did not know what they were doing or did not know it was wrong. The burden is on the defendant to prove insanity by clear and convincing evidence.
Statute of Limitations – The statute of limitations is a defense that bars prosecution if the state fails to bring charges within the time limits prescribed by law. Felonies, misdemeanors, and capital offenses each have specific statutory timeframes after which charges cannot lawfully be filed.
Incompetent to Stand Trial – A defendant is considered incompetent if they lack the sufficient present ability to consult with their lawyer with a reasonable degree of rational understanding, or lack a rational and factual understanding of the proceedings against them. Proceedings must be paused until competency is restored.
Independent Act Criminal Defense Doctrine – The independent act defense applies when a co-defendant or accomplice commits an act that is outside of, and independent from, the original common plan, and the act was not a reasonably foreseeable consequence of the criminal enterprise.
Voluntary Abandonment Criminal Defense – Voluntary abandonment occurs when a person freely and voluntarily renounces their criminal purpose prior to the commission of the offense and makes a complete withdrawal, demonstrating they are no longer a participant in the crime.
Necessity or Duress Criminal Defense – Necessity or duress is a defense when a person commits an otherwise unlawful act under the compulsion of imminent threat of death or serious bodily injury, where no reasonable legal alternative existed, and the harm avoided outweighed the harm caused by the criminal act.
Advice of Counsel (Good Faith) Criminal Defense – The advice of counsel defense applies when a defendant, in good faith, relies on the advice of an attorney after fully and honestly disclosing all material facts, and commits an act under the belief it was lawful.
Outrageous Government Conduct Defense – The outrageous government conduct defense arises when law enforcement’s methods of investigation are so extreme and shocking that they violate fundamental fairness and due process. This defense applies when the government’s actions create, manufacture, or improperly induce the crime in a way that offends justice, even if the defendant was predisposed to commit the offense. Florida courts recognize this as a narrow defense based on due process principles.
Procedural Criminal Defenses
Under Florida law, procedural defenses include the right to a speedy trial, and protection against double jeopardy and res judicata.
- Speedy Trial – The right to a speedy trial protects defendants from unreasonable delay between arrest and trial. In Florida, specific time limits apply (90 days for misdemeanors, 175 days for felonies) unless waived. A violation can result in dismissal of charges.
- Double Jeopardy – Double jeopardy prohibits a person from being tried or punished twice for the same offense after acquittal or conviction. In Florida, the statute bars multiple punishments for the same act unless the legislature clearly authorizes separate offenses.
- Res Judicata – Res judicata (claim preclusion) is a defense when a matter has already been finally adjudicated between the same parties on the same facts. In the criminal context, it prevents relitigation of issues already decided, overlapping with double jeopardy and collateral estoppel principles.
- Use and Derivative Immunity (but not transactional immunity) for an Investigative Subpoena under Fla. Stat. § 914.04
Factual Defenses
- Alibi – An alibi defense arises when the defendant asserts that they were elsewhere at the time of the crime and therefore could not have committed the alleged offense. Corroborating witnesses, records, or evidence are often required.
- Insufficient Evidence – Insufficient evidence is a factual defense raised when the prosecution fails to present enough legally sufficient evidence to prove each element of the crime beyond a reasonable doubt. A defendant cannot be convicted on speculation or suspicion alone.
- Circumstantial Evidence – When a case rests solely on circumstantial evidence, Florida law requires that the evidence be inconsistent with any reasonable hypothesis of innocence. This defense highlights gaps or alternative explanations that undermine the prosecution’s theory.
Motion Hearings
- Motion to Suppress Physical Evidence – A motion to suppress physical evidence challenges the admissibility of items obtained through illegal searches or seizures. If granted, the evidence is excluded from trial under the exclusionary rule.
- Motion to Suppress Statements – Miranda Violation – This motion is filed when statements or confessions were obtained without proper Miranda warnings, or when they were coerced, involuntary, or made without a valid waiver of rights. Illegally obtained statements must be suppressed.
- Motion to Dismiss – A motion to dismiss may be filed when the undisputed facts do not establish a prima facie case of guilt, or when prosecution is barred by defenses such as immunity, statute of limitations, or double jeopardy.
- Motion for Return of Property – This motion requests the return of personal property seized by law enforcement when it is no longer needed as evidence, or when the seizure was unlawful. Property owners may petition the court for its release.
Additional Resources
The Wes Kleinert Fair Interview Act – The Wes Kleinert Fair Interview Act was recently passed by the Florida legislature under Chapter 2016-175. This recently passed legislation requires the Florida Department of Highway Safety and Motor Vehicles (DHSMV) to issue an identification card exhibiting a special designation for a person with a developmental disability. The new legislation also creates Section 943.0439 to require a law enforcement officer, correctional officer, or another public safety official to make a good faith effort, upon the request of a parent, a guardian, or the individual, to ensure that specified professionals are present at all interviews of an individual diagnosed with autism or an autism spectrum disorder, etc. This new legislation applies to victims, witnesses, and defendants. The statute specifically states that the failure of law enforcement to do so is not grounds for suppression of a statement or the contents of the interview, or a cause of action against law enforcement.
Attorney for Florida Legal Defenses in Tampa, FL
Contact the Sammis Law Firm to discuss with a Florida criminal lawyer how a particular criminal defense may apply to the facts of your case. We defend people charged with criminal offenses throughout the State of Florida.
We represent clients in the Tampa Bay Area, including Pinellas County, Hillsborough County, Manatee County, Polk County, Pasco County, and Sarasota County and the cities of Tampa, St. Petersburg, Clearwater, Bartow, Dade City, New Port Richey, and Plant City.
Contact an aggressive and experienced Tampa criminal attorney today for a free consultation to discuss your arrest and prosecution under Florida law.
Call (813) 250-0500 today.
This article was last updated on Friday, May 16, 2025.
