Miami Criminal Defense Lawyer Blog

The task force created to look at the current state of the law regarding self-defense embarks on its review Florida's Stand Your Ground Law. Every Miami criminal defense lawyer is anxiously awaiting the outcome to see if any change in the law will affect present and future clients. In addition to the task created by the governor, and independent task force created by a state senator will also look at the law to determine if it should be changed to minimize the use of the law in future cases. Senator Chris Smith claims that the law should be changed to allow law enforcement officers more of an opportunity to investigate crimes committed against unarmed victims, thus reducing the ability of criminals to use the law as a way to avoid prosecution. Smith intends for his task force to compile a report which would provide the governor and the legislature guidance in how to modify the current state of the law.

Under the current state of the law, a stand your ground defense will initially be heard by a judge in response to a motion to dismiss filed by a defense attorney. After taking testimony and reviewing physical evidence, the judge has the power to dismiss a case, or in the alternative, deny the motion and set the case for trial. Smith proposes that a stand your ground defense would be better off heard by a grand jury who would determine whether or not a defendant should stand trial. Smith's group is also advocating for changes in the self-defense law which include re-writing the law, thus limiting its application, and a tracking system for cases in which the defense is based on stand your ground. The committee has declined to advocate for an outright repeal of the law.

The task force created by the governor is meeting today simply to establish its goals and plan future meetings to discuss the law. After several meetings, it is anticipated that the panel will submit suggestions to the governor and the legislature about how to improve the stand your ground law. The good news is that changes are not imminent and that defendants currently charged with violent crimes such as murder, manslaughter, aggravated battery and aggravated assault have time to submit motions to dismiss under the current change of law. With that being said, it seems unavoidable that the law will eventually be pared back by the legislature, allowing for fewer defendants to seek asylum under the law. Defense attorneys and representatives from state attorneys offices are concerned with the potential outcome of the meetings and will appear at various times in Tallahassee to express their views.

Defense attorneys believe that there are very valuable points to the law as it currently exists, while prosecutors believe that the law also has positive aspects, but is often applied inconsistently due to its broad language. While the law should be limited to strictly to self-defense cases, it has no place in domestic violence cases or in cases where there are unintended deaths that occur as a result of shootouts resulting from street level narcotics dealings. The major concern among prosecutors and legislators is that the law is being used as a shield by defendants who really should not have a right to avail themselves of the stand your ground law.

Florida Task Force Seeks Major Overhaul to Stand Your Ground Law, Miami Herald.com, May 1, 2012.

The highly publicized Trayvon Martin case has caused concerns for opponents and proponents of Florida's "Stand Your Ground" law. Local criminal lawyers are concerned that the nationwide publicity garnered by the Martin case will somehow limit their clients' ability to prevail either at trial or during a pre-trial motion to dismiss. Some Miami defense attorneys believe that the highly publicized case will have a negative impact on judges and jurors alike. It is unfortunate that the media can play such a large part in determining the outcome of a criminal case. As most people know, the case stems from an incident that occurred between a neighborhood watch captain and local youth. Martin was killed during a struggle with George Zimmerman on February 26, 2012, in Sanford, Florida.

According to the media, defense lawyers must be concerned with the Trayvon factor in cases involving self-defense. Stand Your Ground has been an effective defense technique for individuals charged with violent crimes such as murder, manslaughter, aggravated battery and aggravated assault. According to Nellie King, the president of Florida Association of Criminal Defense Lawyers (FACDL), defense counsel will have to take precautions during jury selection in cases involving self-defense. In criminal trials, jury selection is often considered the most important segment. The purpose of jury selection is to find jurors that can be both fair and impartial to the state. In Miami-Dade County, judges use questionnaires to determine whether or not a potential juror would be fair and impartial. The prosecution and the defense are permitted to ask more detailed questions in an effort to find a proper jury. Defense lawyers representing clients basing their defense on self-defense must now inquire of jurors whether or not the Martin case will impact the decision they make regarding the case they over which they will preside.

The "Stand Your Ground" gives the power to the judge to determine whether or not a defendant should be immune from prosecution. The hearing is conducted outside the presence of jury and the judge is the sole finder of fact. If the judge believes that a defendant acted appropriately in self-defense within the bounds of the law, it is within his or her purview to dismiss the charge. If judge declines to dismiss the case, the defense can still argue self-defense to the jury. If the jury believes the defendant acted appropriately, then they will return an acquittal.

Opponents of the "Stand Your Ground" law believe that the law promotes vigilantes taking matters into their own hands. They also believe that the defense of self-defense is a matter that should be left up to jurors to decide. Public outcry has caused the governor of the State of Florida to appoint a special prosecutor to look at the facts of the case to determine whether or not Zimmerman should face murder or manslaughter charges. The appointment resulted from local law enforcement officers and prosecutors decision not to arrest or prosecute the case. In another note, the governor is and a panel elected officials have been appointed to review the law as it currently stands on the books.

Florida Defense Attorneys Fear Backlash in Self-Defense Cases,, Miami Herald.com, April 5, 2012.

In 2005, the Florida legislature passed the "Stand Your Ground" law under Florida Statue 776.013 (3) which provides that a person who is not engaged in an unlawful activity and who is attacked in any other place where he or she had 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 to prevent the commission of a forcible felony. Since the law's inception, Miami criminal attorneys and defense lawyers from around the state have increasingly used the new law as a primary defense to violent crimes such as murder and manslaughter. The use of the law has drastically increased in the last year and a half.

The "Stand Your Ground Law" has been invoked more than 130 times since it hit the books. The recent slaying of Trayvon Martin has brought the controversial law back into the spotlight as the other person involved in the case, George Zimmerman, who allegedly shot the victim has yet to be charged. Zimmerman has not be charged with any violent crime to date despite a public outcry for the contrary. The governor of Florida announced that he is assembling a task force to review and study the new law. Out of 130 cases that have involved the new law, 70% of the cases have involved a fatality. Defense lawyers in 50 cases used to the law to prevent their clients from being charged with violent crimes, such as murder, manslaughter or aggravated battery charges. In 10 cases, the law was able to allow defendants to plead to lesser charges. Twenty-eight "Stand Your Ground" cases have made to trial, with prosecutors achieving convictions on 19 occasions.

To invoke the self-defense law, counsel must file a motion to dismiss which will be heard by the circuit court prior to the commencement of the trial. After hearing testimonial evidence and reviewing the physical evidence, the judge can either dismiss the case or deny the motion and set the case for trial. Prosecutors and law enforcement officers have long been opponents of the "Stand Your Ground" law, as there are seldom any witnesses or physical evidence to refute the surviving person's version of the events. Proponents of the law say the law as it stands on the books is allowing citizens to defend themselves from violent crimes. Until the recent shooting of Trayvon Martin, changes in the law were not imminent. Today, it appears as if the legislature is going to scrutinize the law sooner than later.

Part of the problem with the new law is that it is being applied differently throughout the state. Once set of facts in Miami may lend itself to a dismissal, while a case in Ocala with the same set of facts will end up going to trial. The main variable that lends itself to disparate results is that the law can be interpreted differently based on the same set facts. The law requires a judge to consider a defendant's or potential defendant's state of mind which is always a difficult thing to do. The law is likely to be reviewed on an expedited basis as protests are occurring in Sanford, Florida as we speak during an election year. Until the law is reviewed and perhaps changed, the viability of the defense of justifiable use of deadly force will be decided on a case by case basis with a lack of visibility of success.

Number of Stand Your Ground Cases Rises as Legislators Re-Think Law, Miami Herald.com, March 23, 2012.

Pursuant to the recently passed self-defense law of "stand your ground", a local circuit court judge heard a motion to dismiss filed by a well-repsected Miami criminal attorney regarding that issue. The defendant is a twenty-three year old man from New York charged with second degree murder accused in the stabbing death of homeless man outside a Miami Beach night club. According to court documents, the defendant came to Miami Beach in 2008 to party. Prior to entering a nightclub, the defendant purchased the ID belonging to the victim for $50.00. When the homeless man realized that a third party had taken his ID and sold it to the defendant, he went to retrieve the ID from the defendant. The victim allegedly threatened the defendant which caused him to flee into an alleyway. In the alley, a scuffle ensued between the parties. During the scuffle, the defendant took out a knife, stabbing the victim three times. At some point during the scuffle, the victim threw a book bag at the defendant.

After taking testimony and hearing arguments from the prosecution and the defense lawyer, the circuit court judge hearing the case denied the motion to dismiss. The judge found that the defendant was protecting the ID and not himself. He found specifically that " a reasonable person under these circumstances would have believed that if he had given the license back, it may have not been necessary to stab the victim." The lawyer representing the defendant intends on appealing the ruling as the law is still emerging and the order signed by the judge has issues to be raised at the appellate court level. Of course, the prosecution agreed with the ruling saying the judge was correct in his evaluation of the testimony and the evidence presented at the hearing.

In 2005, the Florida legislature amended Florida's self-defense laws to include "stand your ground". The law eliminated a citizen's duty to retreat if confronted with deadly force. Murder or other violent charges, such as aggravated assault and aggravated battery, can now be more easily defended with the new law. A defendant is justified in using deadly force if the defendant believed that the force was necessary to prevent imminent death or great bodily harm to himself or herself while resisting another's attempt to commit murder or any other enumerated violent crime against him or her. The defense can be argued in two ways. The first is through a motion to dismiss heard and ruled on by the judge. If the judge denies the motion, the attorney can argue self-defense to the jury who is the tier of fact.

Several cases have been dismissed throughout the state based on the "stand your ground" law. Last year, a Palm Beach judge dismissed a first-degree murder case involving a shooting that occurred as a result of a confrontation on a boat between the victim and the defendant. A Miami-Dade County judge dismissed a murder case that occurred outside and apartment in Hialeah. Later in the year, a Broward County judge dismissed a charges against a man accused of murdering his wife's former boyfriend. Several other cases are set to be heard at the trial level and the appellate level. The area of the law is evolving and with every case that is heard, different theories of self-defense will come to light. However the cases are ruled upon, the "stand your ground" law provides a defense to some defendants charged with violent crimes.

Miami-Dade Judge Shoots Down Self-Defense Claim in the South Beach Murder, Miami Herald.com, September 18, 2012.

Local law enforcement authorities continue to probe into the highly publicized case regarding a local juvenile who armed himself with a shotgun and shot an intruder committing a theft on his property. The unfortunate event has cost a life, and thrown a 14-year-old into the middle of a legal tussle. It began May 20, in the upscale Miami Shores community, and could prove a test of Florida's pioneering 2005 "Stand your Ground" and "Castle Doctine" statutes which allow for the justified use of lethal force in a self-defense situations, and extended civil protections to a person who used such force. Local Miami criminal defense attorneys from all over the county have been quick to throw their opinion into the mix.

According to press accounts, Reynaldo Muñoz, 20, and Carolina Lopez, 19, tried to steal a WaveRunner from the waterfront home of Jeffrey Davis, who was not home at the time of the incident. Muñoz and Lopez parked a truck at Pelican Harbor Marina, and rode a jetski to the Davis home. Muñoz entered the Davis property, and began lowering the WaveRunner into the water. Lopez headed back to the marina where she would help load the stolen craft into the truck and take it a buyer for $2,000. Muñoz, however, was confronted by Davis' 14-year-old son who had a shotgun. According to the boy and his mother, Muñoz threatened them. The teenager responded by fatally shooting Muñoz. According to Muñoz family members, Reynaldo was deaf mute and could not have threatened the teenager, at least not verbally. The only criminal charges filed so far have been against Lopez for second degree murder.

This case could become a test with national implications for the no-nonsense approach many states have taken regarding home intrusions, and self-defense. Florida 776.013 protects persons who come under attack, providing them strong criminal and civil protections. It states that, "...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...A person who unlawfully and by force enters or attempts to enter a person's dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence..."
The question most are pining over is whether a seawall is to be considered part of a dwelling or the "Stand Your Ground" law applies. Florida case law has long held that a defendant can commit a burglary without entering the residence. A dwelling burglary will be charged even if a person merely enters the yard if the home is surrounded by a hedge or a fence. A seawall is not a hedge or a fence. It may be considered a barrier, but is more likely to be construed a property line. If it is considered a property line and the state attorney's office holds the same opinion, the "Castle Doctine" will not apply.

The state attorney's office will then have to consider if the "Stand Your Ground" law is applicable in the this case. The vaildity of this defense will depend on the actions of both Munoz and the 14 year-old. The applicabilty of the relatively new law will turn on the actions of the deceased prior to the shooting and any wintess accounts of the same. Florida has particularly strong protections for a homeowner's use of self-defense which amounts to deadly force. In most instances homeowners have no duty to retreat in the face of an intruder and, should they invoke a valid castle law defense, are immune from civil suits. The case will raise difficult questions regarding Muñoz' capacity to articulate a viable threat, and whether or not the jet ski was within the curtilage of Davis' home.

Police Probe: Teen Shot Intruder in the Head, Miami Herald.com, May 23, 2011.