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Stand Your Ground Defense in Florida

Posted on August 19, 2019 by W.F. Casey Ebsary

Stand Your Ground is a defense to some criminal charges in Florida. There is a high profile stand your ground case in Florida where a defendant shot someone in a parking lot dispute. The Stand Your Ground Defense Trial Live Feed is below. Beneath the video feed we have summarized what is needed to successfully establish self defense use of physical force, weapons, and firearms under state law.

According to CourtTV, “It all happened because of a parking spot dispute. Michael Drejka fatally shot Markeis McGlockton outside a local convenience store.” The network contends, “Shortly before the shooting, Drejka had confronted McGlockton’s girlfriend, Britany Jacobs, for using a disabled parking space with a permit. McGlockton came out of the store and pushed Drejka resulting in Drejka falling to the ground. Drejka drew his firearm and shot McGlockton. McGlockton later died from his injuries at a local hospital.”

Florida Law on Stand Your Ground “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.”

In short, a person is justified in the use of non-deadly force and “does not have a duty to retreat before using or threatening to use such force.” The potential defendant probably will have to testify since hearsay evidence is inadmissible at such hearing.

Use of Deadly Force Law in Florida

“A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.”

https://www.flsenate.gov/Laws/Statutes/2018/776.012

Stand Your Ground Defense Trial Live Feed

STANDARD OF REVIEW FOR STAND YOUR GROUND HEARINGS

“A person who uses or threatens to use force as permitted in § 776.012″ ” is immune from criminal prosecution.” §776.032. When a defendant asserts statutory immunity, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).
Under § 776.012(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 is justified in the use of non-deadly force “does not have a duty to retreat before using or threatening to use such force. ” Id.

“An objective standard is applied to determine whether the immunity provided by these provisions attaches.” Mobley v. State, 132 So.3d 1160, 1164 (Fla. 3d DCA 2014). ” That standard requires the court to determine whether, based on circumstances as they appeared to the defendant when,he or she acted, a reasonable and prudent person situated in the same circumstances and knowing what the defendant knew would have used the same force as did the defendant. ” Id. 1164-1165.

ADMISSIBILITY OF EVIDENCE FOR STAND YOUR GROUND HEARINGS

A defendant has the right to a pretrial evidentiary hearing on his motion to dismiss based on §776.032 immunity. Satyanand v. State, 147 So.3d 662,663 (Fla. 5th DCA 2014). Hearsay evidence is inadmissible at such hearing. McDaniel v. State 24 So. 3d 654, 657-658 (Fla. 2d DCA 2009).

Gun and Drug Evidence Suppressed

Posted on April 18, 2011 by W.F. Casey Ebsary

Firearm, Gun, Pat Down, Search and Seizure, Reasonable Suspicion

Gun Suppressed

Gun and Drugs were Thrown out after an Illegal Pat Down / Search

Tampa Defense Attorney recently studied a court ruling where a gun and drugs were thrown out after an illegal pat down was ruled a warrantless search. In this Tampa court, the trial judge ruled a Pat down search of a defendant was lawful. The Appeals panel ruled otherwise, finding the officers did not have reasonable suspicion that the defendant was armed with a dangerous weapon.

The defendant was walking along highway and did not comply with an officers’ requests to keep his hands out of his pockets. That fact alone was not sufficient to establish reasonable suspicion. The cops saw no weapons and did not notice bulges in the defendant’s clothing to indicate that he was carrying a weapon. Motion to suppress firearm and drugs discovered during pat down should have been granted.

Fourth Amendment right to be free from unreasonable searches and seizures

Case Excerpt: “This case presents the issue of two conflicting interests: the Fourth Amendment right to be free from unreasonable searches and seizures and the ongoing concern for officer safety in an increasingly dangerous profession. But even though the facts of this case reveal an alarming result of the pat-down—a gun—we are not permitted to be distracted by the fruit of the search. Instead, our focus must be on the justification for the search. See D.B.P. v. State, 31 So. 3d 883, 887 (Fla. 5th DCA 2010) (“The success of the search . . . is not now and never has been the test to be applied.”)”

. . .

“For a weapons pat-down search to be valid, an officer must identify objective facts indicating that the person detained is armed and dangerous. See Howell v. State, 725 So. 2d 429, 431 (Fla. 2d DCA 1999). But here, the only justification provided by the officers was the fact that Dawson refused to comply with their requests to keep his hands out of his pockets. That fact—standing alone—was insufficient to establish reasonable suspicion. The comment made by one officer that he believed Dawson “could have contraband or a weapon” was simply unsupported by any identifiable objective facts to lead him to that conclusion. Because “routine patdown searches based on general concern for officer safety are not constitutionally permitted,” McNeil v. State, 995 So. 2d 525, 526 (Fla. 2d DCA 2008), the officers lacked reasonable suspicion to conduct a pat-down search of Dawson and the trial court erred by denying the suppression motion.”

The Complete Pat Down Opinion is available for download here.

Source: 36 Fla. L. Weekly D804a

Automobile Glovebox Search Thrown Out

Posted on October 25, 2010 by W.F. Casey Ebsary

Automobile Search, glove box, Search and Seizure

Search Seizure Automobile

Weapons Found in Car Suppressed

“movements towards the glove box did not justify a search based on officer safety”

Florida Defense Attorney just received news of a Automobile Search and Seizure case where the defendant fled from police. The vehicle came to rest. The cop watched the defendant reaching towards the dashboard on the passenger side. Police ordered the defendant to show his hands and step out of the car.

The suspect was handcuffed the cops found no weapons on him. Other officers took custody of the defendant. The defendant was separated from his car, in handcuffs, under the supervision of backup officers. The traffic stop cop then seized defendant’s car keys, unlocked the glove box, and found a firearm. The Second District Court ruled that the defendant’s furtive movements towards the glove box did not justify a search based on officer safety. The court held that the law enforcement officer (LEO) could not have reasonably believed that he would find evidence of the defendant s fleeing and eluding in the glove box. Under Arizona v. Gant, the firearm must be suppressed. The case is attached and the firearm statute is below.

Automobile Searched? Tell me about it Toll Free 1-877-793-9290 .

790.23 Felons and delinquents; possession of firearms, ammunition, or electric weapons or devices unlawful.

(1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device, if that person has been:

(a) Convicted of a felony in the courts of this state;

(b) Found, in the courts of this state, to have committed a delinquent act that would be a felony if committed by an adult and such person is under 24 years of age;

(d) Found to have committed a delinquent act in another state, territory, or country that would be a felony if committed by an adult and which was punishable by imprisonment for a term exceeding 1 year and such person is under 24 years of age; or

(e) Found guilty of an offense that is a felony in another state, territory, or country and which was punishable by imprisonment for a term exceeding 1 year.

Source: 35 Fla. L. Weekly D533b (Fla. 2d DCA March 5, 2010) Special Thanks to Rocky Brancato, Associate Attorney Office of the Public Defender

THEF2101 GRAND THEFT FIREARM

Posted on September 18, 2010 by W.F. Casey Ebsary

Grand Theft Firearm, 812.014.2C5, THEF2101

Firearm Grand Theft

“grand theft of the third degree and a felony of the third degree. . . if the property stolen is . . . A firearm”

Grand Theft Firearm

If you have been charged with THEF2101 GRAND THEFT FIREARM you can call a Tampa Criminal Defense Attorney at 1-877-793-9290 and tell me your story.

Form Code: THEF2101
Florida Statute: 812.014.2C5
Level: Fel (Felony)
Degree: 3rd
Description: GRAND THEFT FIREARM

THEF2101 GRAND THEFT FIREARM is often charged in Hillsborough County, Florida.

Title XLVI CRIMES
Chapter 812 THEFT, ROBBERY, AND RELATED CRIMES

812.014 Theft.

(c) It is grand theft of the third degree and a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the property stolen is:

5. A firearm.

WEAP7005 FELON IN POSSESSION OF A FIREARM

Posted on September 14, 2010 by W.F. Casey Ebsary

Felon in Possession Firearm, 790.23.1, WEAP7005, Felon in Possession Firearm

Felon in Possession Firearm

If you have been charged with WEAP7005 FELON IN POSSESSION OF A FIREARM you can call a Tampa Criminal Defense Lawyer at 813-222-2220 and tell me your story.

Form Code: WEAP7005

Florida Statute:790.23.1
Level: Fel (Felony)
Degree: 2nd
Description: FELON IN POSSESSION OF A FIREARM

WEAP7005 FELON IN POSSESSION OF A FIREARM is often charged in Hillsborough County, Florida.

Title XLVI CRIMES

Chapter 790 WEAPONS AND FIREARMS

790.23 Felons and delinquents; possession of firearms, ammunition, or electric weapons or devices unlawful.

(a) Convicted of a felony in the courts of this state;

(b) Found, in the courts of this state, to have committed a delinquent act that would be a felony if committed by an adult and such person is under 24 years of age;

(e) Found guilty of an offense that is a felony in another state, territory, or country and which was punishable by imprisonment for a term exceeding 1 year.

GUNS0420 FELON IN POSSESSION FIREARM FIREARM POSSESS

Posted on September 7, 2010 by W.F. Casey Ebsary

Felon in Possession Firearm, 790.23.1, GUNS0420

Felon in Possession Firearm

“unlawful for any person to own or to have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device, if that person has been . . . Convicted of a felony”

Felon in Possession of a Firearm

If you have been charged with GUNS0420 FELON IN POSSESSION FIREARM FIREARM POSSESS you can call a Firearms Defense Attorney at 813-222-2220.

Form Code: GUNS0420
Florida Statute: 790.23.1
Level: Fel (Felony)
Degree: 2nd
Description: FELON IN POSSESSION FIREARM FIREARM POSSESS

GUNS0420 FELON IN POSSESSION FIREARM FIREARM POSSESS is often charged in Hillsborough County, Florida.

Title XLVI CRIMES
Chapter 790 WEAPONS AND FIREARMS

790.23 Felons and delinquents; possession of firearms, ammunition, or electric weapons or devices unlawful.

(a) Convicted of a felony in the courts of this state;

(b) Found, in the courts of this state, to have committed a delinquent act that would be a felony if committed by an adult and such person is under 24 years of age;

(e) Found guilty of an offense that is a felony in another state, territory, or country and which was punishable by imprisonment for a term exceeding 1 year.