Burden Shifts to State to Counter “Stand Your Ground” Defense

  • Jul 2 2017

On June 9, 2017, Governor Scott signed into law an amendment to the Florida “stand your ground” statute, making it easier for a defendant to establish immunity from prosecution for use of force (including deadly force) or the threat of force, on the ground he acted in self-defense or defense of another. SB 128 went into effect immediately upon the governor’s signature.

Prior to that enactment, the burden was on the defendant to establish a defense under section 776.032 in a pretrial hearing by “a preponderance of the evidence,” Dennis v. State, 51 So. 3d 456 (Fla. 2010), showing he reasonably believed the use of force was necessary to prevent death or great bodily harm to himself or another, or to prevent the commission of a forcible felony.

If the trial court found the defendant had not carried this burden, his recourse would be to petition the appeals court for a writ of prohibition. Peterson v. State, 983 So. 2d 27 (Fla. 1st DCA 2008). In reviewing the matter, the appeals court would defer to the trial court’s findings of fact. Mobley v. State, 132 So. 3d 1160 (Fla. 3d DCA 2014).

With the enactment, the burden is shifted to the prosecution, once the defendant has made a prima facie case of self-defense, to overcome the presumption of immunity with “clear and convincing evidence.”

As a practical matter, a defendant still faces the difficulty that to make even a prima facie case of self-defense, he may have to testify at a pretrial hearing, subjecting himself to cross-examination by the prosecutor and making statements the prosecutor may confront him with at trial if the motion to dismiss is not granted and the appeals court does not grant a writ. Whether the defendant can make a prima facie case using an affidavit, without subjecting himself to cross-examination, is a matter the courts have yet to decide.

At Valiente, Carollo and McElligott PLLC we have experience successfully handling “Stand your ground” cases. Call us anytime with questions or to discuss your Florida “Stand your ground” case.

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Posted in: Criminal, News, Stand Your Ground