Non-Deadly Force for Self-Defense
In many cases in which a person is charged with a violence criminal offenses such as battery or aggravated battery, the issue of self-defense can be asserted at trial.
Under Florida law, the use of non-deadly force for legitimate self-defense claims justifies certain criminal offenses. This means that the defendant is “not guilty” if he was acting in self-defense.
Non-deadly force under Florida law can include any act of violence such as hitting or striking, but can also include the use of a weapon in a manner not likely to cause death or great bodily harm.
If you would like more information on the non-deadly force self-defense laws in Florida then read Florida Statutes § 776.012. The information provided in this article is for general information purposes only.
Attorney for Non-Deadly Force for Self Defense in Tampa, FL
If you have been arrested for a violent criminal offense and believe that your actions were justified because you were using non-deadly force in self-defense or the defense of property, contact an experienced Tampa criminal attorney that is experienced asserting self-defense claims to discuss the particular facts of your case.
Our criminal defense attorneys represent clients charged with violent crimes in Hillsborough County, Pinellas County, Polk County, Pasco County, Hernando County, or Manatee County.
At Sammis Law Firm, P.A., we take self-defense claims seriously. Discuss your case with a Tampa criminal defense attorney that can work with you to find the best way to aggressively defend against the criminal charges.
Contact us to discuss your case with a criminal defense attorney today.
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The Jury Instructions on Self-Defense
In order to assert a claim of self-defense under Florida law, the defendant must present some evidence to support the self-defense claim either through the defendant’s testimony or through some other evidence. Once that showing has been made, the defendant is generally entitled to a jury instruction on self-defense.
Non-deadly force is defined as force not likely to cause death or great bodily harm. The use of non-deadly force is justified under Florida law when the defendant reasonably believes that such conduct is necessary to defending himself or another against the alleged victim’s imminent use of unlawful force and the use of unlawful force by the alleged victim appeared to the defendant to be ready to take place.
Defense of Property under Florida Law
Like self-defense, non-deadly force is also justified under Florida law when it is used to defend property when the alleged victim attempts a trespass or other type of interference with the defendant’s land or personal property.
Likewise, the defendant is justified in using non-deadly force to defend property when that property in in his possession, belongs to his family member, or belongs to another person but the defendant has a legal duty to protect the property.
The defendant must have a reasonable belief that his use of non-deadly force is necessary to prevent or terminate the alleged victim’s immediate wrongful or criminal behavior.
Under Florida Statute Section 776.012, the non-deadly use of force in defense of another person is justified when and to the extent that the defendant reasonably believes that such force is necessary to defend another against such the imminent use of unlawful force.
Florida’s Standard Jury Instructions for Self-Defense Claims Involving Non-Deadly Force
3.6(g) JUSTIFIABLE USE OF NON-DEADLY FORCE
An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which the defendant is charged if the injury to the alleged victim resulted from the justifiable use of non-deadly force.
“Non-deadly” force means force not likely to cause death or great bodily harm.
“Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
“Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent or mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.
“Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.
Under Florida law, Section § 776.012, self-defense or the defense of another person provides for the following standard jury instruction:
The defendant would be justified in using non-deadly force against the alleged victim if the following two facts are proved:
- Defendant must have reasonably believed that such conduct was necessary to defend himself or a third person against the alleged victim’s imminent use of unlawful force against the defendant or the third person.
- The use of unlawful force by the alleged victim must have appeared to the defendant to be ready to take place.
Under Florida law, Section § 776.031, defense of property provides for the following standard jury instruction:
The Defendant would be justified in using non-deadly force against (victim) if the following three facts are proved:
- The alleged victim must have been trespassing or otherwise wrongfully interfering with land or personal property.
- The land or personal property must have lawfully been in the defendant’s possession, or in the possession of a member of his immediate family or household, or in the possession of some person whose property he was under a legal duty to protect.
- The Defendant must have reasonably believed that his use of force was necessary to prevent or terminate the alleged victim’s wrongful behavior.
Under Florida law, the “Stand Your Ground” or “No Duty to Retreat” instruction can be requested if the self-defense allegedly occurred in the defendant’s residence, dwelling, or occupied vehicle.
If the defendant is in his dwelling, residence, or occupied vehicle, he is presumed to have held a reasonable fear of imminent peril of death or bodily injury to himself if the alleged victim has unlawfully and forcibly entered or has removed or attempted to remove another person against that person’s will from that dwelling, residence or occupied vehicle and the defendant had reason to believe that had occurred. The defendant had no duty to retreat under such circumstances.
A person who unlawfully and by force enters or attempts to enter another’s dwelling, residence or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
A person does not have a duty to retreat if the person is in a place where he has a right to be.
Under Florida law, the “No Duty to Retreat” instruction can also be requested even if the self-defense occurred in a place other than the defendant’s residence, dwelling or occupied vehicle. The case of Novak v. State, 974 So. 2d 520 (Florida 4th DCA 2008) discusses the issue of “unlawful activity.”
There is no duty to retreat where the defendant was not engaged in any unlawful activity other than the crime(s) for which the defendant asserts the justification.
If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force, if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or a third person or to prevent the commission of a forcible felony.
[Define applicable forcible felony that defendant alleges the alleged victim was about to commit.]
A person does not have a duty to retreat if the person is in a place where he has a right to be.
In many of these self-defense cases in which the defendant is charged with an independent forcible felony, the prosecutor will allege that the defendant was the “aggressor” as provided in Florida Statute § 776.041.
The use of non-deadly force is not justified if you find:
- The was attempting to commit, committing, or escaping after the commission of a (applicable forcible felony which must be defined).
- The defendant initially provoked the use of force against himself, unless
a. The force asserted toward the defendant was so great that he reasonably believed that he was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using non-deadly force on the assailant.
b. In good faith, the defendant withdrew from physical contact with the assailant and indicated clearly to the assailant that he wanted to withdraw and stop the use of non-deadly force, but the assailant continued or resumed the use of force.
Objective and Subjective Standard in Self-Defense
In deciding whether the defendant was justified in the use of non-deadly force, you must judge him by the circumstances by which he was surrounded at the time the force was used.
The danger facing the defendant need not have been actual; however, to justify the use of non-deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force.
Based upon appearances, the defendant must have actually believed that the danger was real.
Reputation of the Alleged Victim for Being Violent or Dangerous
If you find that the alleged victim had a reputation of being a violent and dangerous person and that his reputation was known to the defendant, you may consider this fact in determining whether the actions of the defendant were those of a reasonable person in dealing with an individual of that reputation.
Consider the Physical Abilities of the Defendant and the Alleged Victim
In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of the defendant and (victim).
Reasonable Doubt Standard Applies to the Self-Defense Determination
If, in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of non-deadly force, you should find the defendant not guilty.
However, if from the evidence you are convinced that the defendant was not justified in the use of non-deadly force, then you should find him guilty if all the elements of the charge have been proved.
Information Center on Criminal Defenses Under Florida Law
Self- Defense – Use of Deadly Force – In any case in which deadly force was used, visit this article with information about how self-defense is applied under Florida law for cases involving the use of deadly force.
This article was last updated on Wednesday, January 27, 2021.