Florida Judge Says Burden Shift in “Stand Your Ground” Law Unconstitutional

  • Jul 5 2017

A Miami-Dade trial judge has ruled the legislature overstepped its authority in amending Florida’s “stand your ground” statute to make it easier for a defendant to establish immunity from prosecution for use of force or the threat of force, on the ground he acted in self-defense.

SB 128, which went into effect immediately upon the governor’s signature on June 9, 2017, shifts the burden of proof on the claim of self-defense to the prosecution. If the defendant makes a “prima facie” showing of self-defense, the prosecutor must overcome that showing by “clear and convincing” evidence. In a 14-page ruling on July 3, 2017, Judge Hirsch of the Miami-Dade circuit court ruled the question how a claim of self-defense is to be handled is a matter for the courts, not the legislature, to decide.

Prior to the recent enactment, the burden was on the defendant to establish a defense under Florida Statute § 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 would still face 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.

As of this writing, it is not known whether the defendants will seek a writ to quash Judge Hirsh’s ruling, how quickly the state supreme court might act on such a petition, or whether other courts might follow Judge Hirsch’s lead while the petition is pending.

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.

Tagged with: ,

Posted in: Criminal, Stand Your Ground