RE: Stand Your Ground
Let’s talk for a moment here.
Are you charged in Lake County, Fl. or Sumter County, Fl. with the crime of Battery; Aggravated Battery; or some forceful event involving forcible violence? In case you are not aware, should you be so charged, there can be an escape from prosecution. That is the defense of self-defense. Sounds simple, but it way to often is ignored. These can be pre-trial motions that can potentially get your case dismissed. There is a statute that governs this defense in a pre-trial manner. Generally, the primary statute is Fla. Statute 776.012[1]. The statute provides in pertinent and limited part as follows:
“(1) A person is justified in using or threatening to use force, except deadly
force, against another when and to the extent that the person reasonably
believes that such conduct is necessary to defend himself or herself or
another against the other's imminent use of unlawful force. A person who
uses or threatens to use force in accordance with this subsection does not
have a duty to retreat before using or threatening to use such force.” Fla.
Stat. 776.012[1].
Pretty awesome! Way too often, I see attorneys ignore the statute all together as if they
are unaware of it. I have used the statute and called upon the court to conduct such
hearings and have done so successfully. If granted, you know what! the case goes away.
It is not a jury issue. The judge must dismiss the case. The court is not to declare, “I think
it’s a jury issue.”
Second, once you establish your claim you need only present evidence by the surrounding
circumstances. The alleged victim is not assured of one free punch prior to your raising
this defense. The court must analyze all the circumstances from a reasonable person
analysis. Did the distance; statements; actions; and behavior all create a reasonable fear
in a reasonable person. Likewise, should you step in to be defending another, would the
initial person have a right to feel fear. Such factors are to be considered. Sometimes, the
court will seek to avoid ruling on the matter, indirectly fearful that the State is going to
be deprived on their day in court. Case law supports calling the court out in such
circumstances.
Here is another great aspect of this statute, once a defendant raises a prima facie claim
of self-defense immunity at a pretrial hearing, the burden of proof shifts to the state to
overcome the immunity by clear and convincing evidence that a reasonable person would
not hold such fear. That’s right, “shifts” to the State. The State cannot sit there and do
nothing. The State can’t sit hoping that the court might come to their rescue. The State
must act. A “clear and convincing standard” is an onerous standard. Not simply that
there’s a dispute on the topic, but that the matter is not a dispute based on the real
evidence to be offered at trial. A standard which the State way too often says to
themselves, “Hey. . .I’m not up to this task with this witness or this evidence.” The judge
knows the standard and can easily be reminded. I am reminded of one hearing. The judge
denied the motion on the statement: “Well, I don’t like that rule, I think the State should
have their day in trial.” Later, the State dismissed the case prior to trial aware that this
proclamation by the court would not stand on appeal. Such motions either directly or
indirectly are meaningful.
If your attorney has not raised the issue, or you want an attorney that is going to go the
distance and cover every angle at all stages, call me. I know the case law on the topic
above and have argued such motions previously. Call me if you’re in Tavares, or Lake
County, Florida. If the matter is a death or serious felony, in rare situations I may travel
outside of my local region. It takes time, but I’m willing to go the distance with you.
Sincerely,
/s/Jeffrey W. Wiggs, Esq.
307 N. Barrow Ave.
Tavares, Fl. 32778
Ph: (352) 253-0100
Caveat: Please understand, each case turns on its own merits. The above is a general statement of the law and each
case must be deeply analyzed on a fact-by-fact basis. If you have retained an attorney, talk with him on the subject.
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