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2017 Brings Important Changes to the "Stand Your Ground" Law

Florida's self-defense law has changed radically once again. Over the last few decades, Florida has expanded self-defense from an affirmative defense at trial to a statutorily based immunity from criminal and civil liability. Recently, Governor Rick Scott signed SB 128 into law which now requires prosecutors, in a pre-trial proceeding, to prove by "clear and convincing evidence" the accused did not act in self defense.

This immunity is not limited to cases involving firearms, but can be used in any scenario in which a citizen acts in self-defense. Because self-defense is a common affirmative defense (affirmative defenses admit something occurred but offer a legal explanation and excuse for what occurred), there is no doubt this change to the law will increase the frequency of immunity hearings. Our law firm had handled many "stand your ground" cases (for an example of a such as case, please see our Featured Case involving the Hoit brothers) under various versions of the old law, both in pre-trial litigation and at trial. If you have questions about self-defense, "stand your ground" or are facing a prosecution and believe self-defense may apply, please contact us and we will be happy to discuss your case.

One of the more interesting and difficult questions is what effect will the new law have on cases that were not "final" when the new law came into effect on June 9, 2017. An allegation or arrest after June 9, 2017 is clearly covered under the new provisions. But if the event or arrest occurred prior to June 9, 2017 but the case was still open at the trial level (meaning not on appeal), can an accused claim and benefit from the new and much higher standard? Before SB 128, a defendant had to show, by the preponderance of the evidence, he or she was justifiably acting in self-defense. Now, the state must show, by clear and convincing evidence, the defendant was not acting in self-defense. So, two things have occurred - the burden has shifted from the defendant to the State and, the burden has been raised to just shy of the "reasonable doubt" standard (requiring a great deal more proof and holding the judge to a higher level of certainty). The procedure remains the same - the accused needs to bring a pre-trial motion to dismiss asserting the immunity. The burden would then be on the State to disprove the defendant's claim. This is a huge change and one which clearly benefits the accused citizen. Because it is favorable, the State will want to argue it does not apply retroactively, i.e. to those cases pending before the new law was signed into effect. Fortunately, it appears the law does apply retroactively.

Florida's 3rd District Court of Appeals had already remanded a case back to the trial court to apply the new post June 9, 2017 law to the facts established at an earlier hearing under the old law. Because the new law is a procedural change to Florida law, it applies to pending cases. The distinction between "substantive" and "procedural" can be very confusing, but is very important because procedural changes apply retroactively to pending criminal matters, but substantive changes do not. Generally, a procedural change impacts how an established law is applied or furthered, whereas a substantive change creates or eliminates a duty, right or remedy. Smiley v. State, 966 So.2d 330 (Fla. 2007). Statutory changes to burdens of proof are procedural. Ziccardi v. State, 570 So.2d 1319 (Fla. 2nd DCA 1990). So, a change in the law that modifies the burden of proof at a pending proceeding is a procedural change and applies retroactively to cases which are not final. This means that anyone accused of a crime or who otherwise seeks immunity under Florida's "Stand Your Ground" law benefits from the June 9, 2017 change. If you believe you may benefit from claiming self-defense or asserting your right to "Stand Your Ground," please contact Damore, Delgado & Romanik to learn more about how we can help you with the facts of your case. Our team of criminal defense attorneys has decades of experience, hundreds of defense trials, an attorney board certified by the Florida Bar as an expert in criminal trial law, and the passion, experience and dedication to help you defend yourself against the Government.

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