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Florida Puts Greater Burden on Prosecutors in Stand Your Ground Cases

In Bretherick v. State, 170 So.3d 766 (Fla. 2015), the Supreme Court of Florida concluded that the Fifth District Court of Appeal correctly determined that the defendant bears the burden of proof, by a preponderance of the evidence, to demonstrate entitlement to Stand Your Ground immunity at the pretrial evidentiary hearing. The Court noted that in Dennis v. State, 51 So.3d 456 (Fla. 2010), it approved the procedure of a pretrial evidentiary hearing set forth in Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008), for evaluating a claim of immunity under the Stand Your Ground law.

Jared Bretherick was charged with aggravated assault with a firearm for his alleged conduct during an encounter with another driver on a highway in 2011, and Bretherick filed a motion to dismiss under Florida Rule of Criminal Procedure 3.190(b), claiming immunity from prosecution under Florida’s Stand Your Ground law. Bretherick sought a pretrial evidentiary hearing on his motion to dismiss, consistent with the Court’s decision in Dennis, which approved the procedure of a pretrial evidentiary hearing to consider a defendant’s claim of entitlement to Stand Your Ground immunity, but the trial court concluded that Bretherick did not establish entitlement to immunity by a preponderance of the evidence and denied Bretherick’s motion to dismiss.

In response to the Supreme Court’s decision in Bretherick, Florida senators approved Senate Bill 128 (SB 128) in March 2017 for the second consecutive session. The bill shifts the burden of proof from the defendant to the prosecutor during the pretrial phase of Stand Your Ground cases and was signed into law by Governor Rick Scott on June 9.

“If a prosecutor doesn’t have the evidence to prevail at this immunity hearing … the prosecutor does not have sufficient evidence to win at trial,” said Senator Roby Bradley, the former prosecutor who sponsored SB 128, according to the Miami Herald. “Innocent people will not go free as a result of this bill; this bill isn’t about creating loopholes.”

Broward County Stand Your Ground Lawyer

With the passage of SB 128, Florida Statute § 776.032(4) now reads:

In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, 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).

Subsection (1) of the statute states that a person who uses or threatens to use force as permitted in Florida Statute § 776.012, Florida Statute § 776.013, or Florida Statute § 776.031 “is justified in such conduct and is immune from criminal prosecution and civil action for the use or threatened use of such force by the person, personal representative, or heirs of the person against whom the force was used or threatened,” unless the person against whom force was used or threatened is a law enforcement officer. A Miami judge, however, ruled in July that the state’s updated Stand Your Ground law was unconstitutional.

The Miami Herald noted that Miami-Dade Circuit Judge Milton Hirsch’s ruling was not binding, meaning that other trial courts across the state could follow the law if they choose, but the case likely began the appeals process set up a potential review by the Florida Supreme Court. “I would be surprised if this decision were upheld at the appellate level,” Bradley told the Herald.

If you were arrested for any kind of violent crime despite your use or threatened use of force is entirely justified, it is in your best interest to not say anything to authorities without legal counsel. Contact The Hoffman Firm as soon as possible.

Fort Lauderdale criminal defense attorney Evan Hoffman may be able to shield you from criminal prosecution under Florida’ Stand Your Ground law. He regularly defends individuals who have been accused of such crimes as murder, manslaughter, aggravated assault with a firearm, and many others.

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