Articles Posted in Defenses

If a police officer wants to stop you on the street, he or she has to have a reasonable suspicion to believe that you have committed or are committing a crime. A recent case out of Florida’s Second District Court of Appeals involving an alleged Tampa burglary crime is a good example of just how seriously judges take that requirement.

police handcuffsThe case stemmed from an incident on the University of South Florida campus. A man testified that he was driving near the campus when he noticed two people fighting. He said he observed a young man in a white tank top and jeans on a bicycle trying to get away from a young woman pulling on his tank top and yelling “he stole my phone.” The man on the bike swung his arms at the woman and was able to shake her off and get away.

A USF police officer later responded to the scene and said she noticed three suspects on bikes in the area. She said one of the suspects was wearing a white tank top and shorts. The officer flashed her vehicle’s police lights and yelled “stop, police,” but the man in the tank top fled the scene. A Tampa police officer later apprehended a person whom the court called “B.M.” in a shed in a residential backyard. The USF officer identified B.M. as the person who had fled. He was charged with resisting an officer and burglary. The officers did not recover the missing phone. B.M. was eventually convicted on both charges and sentenced to juvenile probation.

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Dollar BillsFlorida’s Stand Your Ground law gives criminal defendants immunity against prosecution if they meet the following three elements:  the use of deadly force was (i) reasonable because deadly force was necessary to prevent imminent death or great bodily harm to the defendant or to prevent the commission of a forcible felony; (ii) used while the defendant was not engaged in a criminal activity; and (iii) used in a place where the defendant had a right to be. A recent Florida gun crime case, decided on November 15, 2017, considered the second element, whether the defendant was engaged in a criminal activity at the time the alleged self-defense occurred.

The defendant testified at an evidentiary motion to dismiss the second-degree murder charges against him that on the day of the shooting, he took a few hundred dollars out of his pocket when the eventual victim told him that she shouldn’t walk around with that amount of cash because of the reputation of the neighborhood. The defendant informed the eventual victim that he had “protection.” The defendant then continued talking with his friends. The defendant was then attacked from behind and hit on the left side of his face and knocked up against a car. The eventual victim reached for the defendant’s side and made contact with the defendant’s gun. The defendant then grabbed his gun and pulled the trigger. The victim did not fall to the ground. They both ran in different directions, although the victim eventually died of his gunshot wounds.

The defendant presented evidence at a pre-trial hearing that corroborated his account of the event. The trial court ruled that as a result, the defendant was entitled to immunity and dismissed the second-degree murder charge against the defendant. The State appealed because the court did not discuss in the written order whether the defendant was engaged in a criminal activity at the time of the shooting, even though both the prosecutor and defense counsel argued this issue at the hearing.

In criminal trials, the jury is asked to determine the guilt or innocence of the defendant. Jury instructions help the jurors make their decision within the framework of existing laws, and the criminal defendant is entitled to have the jury instructed in his or her theory of defense, assuming there is evidence to support this theory. A failure to properly instruct the jury may constitute a reversible error in a Florida theft crime case.

Apartment Complex
The defendant and the alleged victim were neighbors in a four-unit duplex, where they shared a backyard area. One night, their dogs fought in the shared backyard, which led to a fight between the defendant and his neighbor. Although there was differing testimony as to what actually occurred, the defendant argued that his neighbor hit him, so he hit the neighbor in self-defense. The fight started in the neighbor’s doorway, and the defendant said that in the course of the fight, he somehow ended up inside the neighbor’s apartment. The defendant was charged with burglary and misdemeanor battery as a result of the altercation. During the jury charge conference, the defendant’s attorney requested that the jury receive a special instruction that self-defense was an available defense to the burglary charge, just as it was a defense to the battery charge. The trial court declined to give this instruction, and following his conviction, the defendant appealed the trial court’s ruling.

The appeals court considered whether the trial court committed a reversible error by ruling that self-defense was not an available defense for the burglary charge. The appeals court noted that the facts of the case suggested that the charges of battery and burglary were inextricably linked and almost functioned as a single charge. In other words, the defendant’s theory was that the burglary and the battery were part of the same encounter with his neighbor. His self-defense claim started outside the neighbor’s apartment and continued unabated when the fighting traveled into the neighbor’s apartment, according to court documents.

The Fourth Amendment of the U.S. Constitution grants protections against illegal searches and seizures by law enforcement. When an alleged Fourth Amendment violation occurs, the criminal defendant can file a motion to suppress. If the court grants the motion to suppress, the evidence seized in the course of the illegal search is excluded from trial. Florida’s First District Court of Appeals recently considered a defendant’s appeal of a motion to suppress in a Florida cocaine case.

Squad Car

The arresting officer testified that he reported to the site of a possible car accident. When he arrived, the defendant was standing next to a vehicle. He concluded that the vehicle’s damage was preexisting but noted that the defendant appeared very intoxicated, although he did not conduct any field sobriety tests. The officer told the defendant that if he saw her driving, he would arrest her. The defendant went inside a nightclub, and the police officer parked across the street to observe whether the plaintiff tried to drive her own vehicle. The police officer was dispatched to another call, but he returned to the nightclub immediately afterwards. As he arrived, the defendant was leaving in her vehicle. He followed the defendant, and although he did not observe her break any traffic laws or drive erratically, he concluded that she was almost certainly still intoxicated.

Upon stopping the appellant, the officer observed that the appellant was still extremely intoxicated, had slurred speech, had red and glassy eyes, and emitted a strong odor of alcohol. He asked her to perform field sobriety exercises, which she refused. He then placed her under arrest for DUI. The appellant refused to take a breath test. In a search incident to the arrest, a baggy of cocaine and a straw were recovered from the appellant’s pocket.

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Prison CellsThe U.S. Supreme Court in Miller v. Alabama held that the Eighth Amendment of the United States Constitution prohibits sentencing guidelines that require life imprisonment without parole for juvenile offenders. In response, the Florida legislature passed a new set of guidelines for sentencing people convicted of Florida juvenile crimes. The guidelines ensure that juveniles have any long-term sentences reviewed by a judicial body.

Under the new framework, the status of an offender as either an adult or a juvenile at the time the crime was committed is a crucial threshold question. Florida’s Third District Court of Appeals recently remanded a case to determine whether the defendant was a juvenile at the time the crime was committed.

The defendant appealed his conviction because there were discrepancies in his age. The defendant’s arrest affidavit showed his date of birth as December 3, 1963. However, the Florida Department of Corrections listed his date of birth as December 3, 1962. The offenses for the defendant’s crimes ranged from March to May 1981. The appeals court remanded the case to the trial court to determine the defendant’s correct date of birth. If the defendant was born in 1963, the defendant could be eligible for relief under the Florida Supreme Court decision in Atwell v. Florida.

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Football SnapThe Florida legislature recently passed an expanded version of Florida Statute section 776.032, or as it’s more commonly known, the Florida stand-your-ground law. The revised law shifts the burden of proof from the defendant, asserting the stand-your-ground defense, to the prosecution. Specifically, when a defendant raises a stand-your-ground defense, the prosecution is required to rebut the defendant’s prima facie immunity claim by clear and convincing evidence. Traditionally, the defendant is required to prove the elements of the affirmative defense as opposed to merely stating a prima facie claim.

This new law went into effect in June, so a Tampa murder trial related to the death of a former University of South Florida football player is one of the first to apply the new law.

The defendant was charged with murder after a fight broke out in the early morning hours outside a nightclub in Ybor City. He is accused of stabbing an ex-USF player to death with a knife during the altercation. He made his prima facie case for self-defense primarily based on the fact that the ex-USF player was physically larger than him. In fact, the ex-USF player was eight inches taller and 150 pounds heavier than the defendant.

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