Florida’s “Stand your Ground” Law
Chapter 776, Fla. Stat., commonly referred to as the “Stand Your Ground” law, established a new right to immunity from prosecution when a defendant uses force in accordance with the specified prerequisites.
The legislation is a powerful tool to have a case dismissed before trial when the person accused of a crime is entitled to statutory immunity from criminal prosecution pursuant to §776.032, Fla. Stat.
Once provision for self-defense claims in Florida, §776.012, Fla. Stat., provides:
“A person is justified in using … deadly force if … she reasonably believes that using … such force is necessary to prevent imminent death or great bodily harm to … another ….
A person who uses … deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand … her ground if the person using … the deadly force is not engaged in a criminal activity and is in a place where … she has a right to be.”
As passed in 2005, §776.032 did not provide for or refer to any procedural mechanism for enforcement of the new right to immunity. As a result, it did not allocate the burden of proof between the parties or state what the level of proof was to be.
When deciding the burden and standard of proof, the trial courts and the appellate courts wrestled with these issues until 2015 when the procedure for a pretrial evidentiary hearing was first fixed by the Florida Supreme Court in Dennis v. State, 51 So.3d 456 (Fla. 2010).
In 2015, after an analysis of legislative intent and a survey of other statutory immunity proceedings, the Florida Supreme Court held that the defendant would have the burden of proving entitlement to the immunity by a preponderance of the evidence at the pretrial evidentiary hearing. Bretherick, 170 So.3d at 769.
The Bretherick Court concluded that “[p]lacing the burden of proof on the defendant at the pretrial evidentiary hearing is principled, practical and supported by our precedent.” Id.
The court, however, started its analysis by recognizing that the allocation of the burden of proof was an issue of statutory interpretation. Id. at 771.
Justice Canady’s dissent presciently argued that the court’s allocation of the burden of proof was not consistent with legislative intent because it impoverished the benefit of the immunity by “guarantee[ing] that certain defendants who would be entitled to acquittal at trial will nonetheless be deprived of immunity from trial.” Id. at 780 (Canady, J. dissenting).
The Florida Legislature and Executive responded to Bretherick in 2017 by enacting and signing the Amendment into law which shifted the burden of proof to the State and elevated the burden from the “preponderance of the evidence” standard to “clear and convincing.”
Attorneys “Stand Your Ground” Claims in Tampa, FL
If you believe that a self-defense claim is a defense to your charge for any crime of violence then contact an experienced criminal defense attorney.
The lawyers at the Sammis Law Firm are experienced in representing individuals charged with crimes of violence throughout Hillsborough County, and the surrounding areas of Tampa Bay including St. Petersburg and Clearwater in Pinellas County, Dade City and New Port Richey in Pasco County, and Brooksville in Hernando County.
The Stand Your Own Ground or Castle Doctrine laws in Florida were enacted to protect individuals against prosecutions when they acted in self-defense to protect themselves or their family against intruders or attackers.
Call (813) 250-0500 today.
The History of Florida’s “Stand Your Ground” Statute
Section 776.032, Florida Statutes, is commonly referred to as the “Stand Your Ground” Law or the “Castle Doctrine.” In passing the Stand Your Ground law 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 or civil action for acting in defense of themselves and others.” Ch. 05–27, at 200, Laws of Fla.
Under Florida law, “[a] person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.” § 776.013(3), Fla. Stat. (2007).
Senate Bill 1052 and Changes to Florida’s Stand Your Ground Law
Senate Bill 1052 was intended to correct an apparent drafting error caused by 2014 legislation amending s. 776.013(3), F.S., a statute governing the right to self-defense in a person’s dwelling, residence, or vehicle.
The relevant provision now states: “A person who is attacked in his or her dwelling, residence, or vehicle has no duty to retreat” and has the right to use or threaten to use defensive force.
As a result of the error, the statute implies that a person’s rights to self-defense do not begin until the person is physically attacked.
However, another subsection of the same statute and other statutes governing the right to use defensive force are clear—the right to use force or threaten to use force begins when a person reasonably believes that using or threatening to use force is necessary to prevent or terminate another person’s use of unlawful force.
Accord to the analysis of the proposed legislation, the bill revises s. 776.013(3), F.S., in a way that is consistent with the other statutory provisions governing the right to use defensive force.
The “Stand Your Ground” Statutes in other States
In late 2017, some twenty-one (21) states have some form of the Stand Your Ground or Castle Doctrine law including:
- North Carolina;
- Rhode Island;
- West Virginia;
- South Dakota;
- South Carolina; and
- North Dakota.
Pre-trial Motions for Immunity from Prosecution under Stand Your Ground
Section 776.032 provides that, in certain circumstances, a person may use deadly force to stand his ground against an attacker and be free from the fear of prosecution.
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).
Defenses under the stand your ground provisions are more specific than other self-defense provisions of Florida law.
Pre-trial Evidentiary Hearing under Florida’s Stand Your Ground Law
When the defendant files a motion to invoke the statutory immunity, then the trial court must hold a pre-trial evidentiary hearing to determine if the preponderance of the evidence warrants immunity. See State v. Yaqubie, 51 So.3d 474, 476 (Fla. 3d DCA 2010).
At the hearing, the trial court must weigh and decide factual disputes as to the defendant’s use of force to determine whether to dismiss the case based on the immunity. Peterson v. State, 983 So.2d 27, 29 (Fla. 1st DCA 2008).
The defendant bears the burden of proof on the issue of whether the “stand your ground” or “castle doctrine” immunity attaches to his or her actions. Id.
During the evidentiary hearing, the trial court considers the disputed issues of fact and must make a finding under the preponderance of the evidence standard. The court can either dismiss the charges or allow the prosecution to go forward.
Finding a Lawyer for Florida’s Stand Your Ground Defense
If you are entitled to immunity pursuant to Florida Statute § 776.032, Florida’s “stand your ground” law, then you can seek a dismissal of the charges against you.
The stand your ground statute grants any “person” who uses — or threatens to use — force permitted by § 776.012, § 776.013 or § 776.031 immunity from any criminal prosecution or civil action “for the use or threatened use of such force. . .,” unless:
- the person claiming immunity is “attempting to commit, committing, or escaping after the commission of, a forcible felony”; or
- subject to certain exceptions, the person claiming immunity initially “provokes the use or threatened use of force against himself or herself.”
§ 776.032, Fla. Stat. ; § 776.041, Fla. Stat.
When a Defendant in either a criminal prosecution or civil action invokes “stand your ground” immunity, the Court must conduct a pre-trial evidentiary hearing.
Our criminal defense attorneys can help you file and litigate a Motion to Dismiss the counts alleged in the charging document.
In the criminal context our “stand your ground” statute was recently amended and now places upon the prosecution the burden of proving — by clear and convincing evidence — that a defendant is not entitled immunity. § 776.032(4), Fla. Stat. (2017).
Our main office is in downtown Tampa in Hillsborough County, FL. We have a second office in New Port Richey in Pasco County. Contact us today to discuss your case.
Call (813) 250-0500.
This article was last updated on Friday, May 14, 2021.