CopyCited 254 times | Published | Court of Appeals for the Eleventh Circuit | 2004 U.S. App. LEXIS 18160, 2004 WL 1902727
...Under Florida law,
even a private actor is justified in the use of deadly force if he reasonably believes
that such force is necessary to prevent imminent death or great bodily harm to
himself or to prevent the imminent commission of a forcible felony. See Fla. Stat.
§ 776.012.
The burden then shifts to Kesinger’s estate to establish that Herrington
violated Kesinger’s constitutional rights....
CopyCited 180 times | Published | Court of Appeals for the Eleventh Circuit | 2010 U.S. App. LEXIS 9106, 2010 WL 1741557
...Penley
and noted that the Penleys failed to present any evidence that would negate the
lieutenant’s privilege. It therefore granted summary judgment to Lieutenant
Weippert and Sheriff Eslinger as to the Penleys’ state law claims.
Under Florida law, “[a] person who uses force as permitted in §
776.012 . . .
is justified in using such force and is immune from criminal prosecution and civil
action for the use of such force.” Fla. Stat. §
776.032. Section
776.012 of the
Florida Statutes in turn establishes that individuals have no duty to retreat before
using deadly force. Id. §
776.012. However, the statute limits the justifiable use of
deadly force to instances in which the actor “reasonably believes that such force is
necessary to prevent imminent death or great bodily harm to himself or herself or
another.” Id. §
776.012(1).
As discussed at length above, Lieutenant Weippert’s conduct was
objectively reasonable and he had probable cause to believe that Mr....
CopyCited 180 times | Published | Court of Appeals for the Eleventh Circuit
...ny instruction
the trial court gave was erroneous. Under Florida law a person is justified in using
deadly force if he reasonably believes that it is necessary to prevent “imminent
death or great bodily harm to himself” or another. Fla. Stat. § 776.012(2)....
CopyCited 75 times | Published | Supreme Court of Florida | 17 Fla. L. Weekly Supp. 400, 1992 Fla. LEXIS 1220, 1992 WL 148230
...It is a defense to the offense with which (defendant) is charged if the [injury to] (victim) resulted from the justifiable use of force not likely to cause death or great bodily harm. In defense of (Defendant) would be justified in using force not likely to person F.S. cause death or great bodily harm against (victim) if the 776.012 following two facts are proved: Give if 1....
...ntinued or resumed the use of force. Force in A person is not justified in using force to resist an arrest resisting by a law enforcement officer who is known, to be or reasonably arrest appears to be a law enforcement officer. F.S.
776.051(1) and F.S.
776.012 Give if However, if an officer uses excessive force to make an applicable arrest, then a person is justified in the use of reasonable force [Page A-5] *1183 See Ivester to defend [himself] [herself] ([or another)], but only to v. State, the extent [he] [she] reasonably believes such force
398 So.2d 926 is necessary. (Fla. 1st DCA 1981); Jackson v. State,
463 So.2d 372 (Fla. 5th DCA 1985). In some instances, the instructions applicable to F.S.
776.012,
776.031 or
776.041 may need to be given in connection with this instruction....
CopyCited 72 times | Published | Supreme Court of Florida | 10 Fla. L. Weekly 557, 1985 Fla. LEXIS 3922
...This new instruction would take the place of the ones on that subject which no appear on page 43 and page 75. The reason for this new instruction is to reflect the rulings in Ivester v. State,
398 So.2d 926 (Fla. 1st DCA 1981), and Jackson v. State,
463 So.2d 372 (Fla. 5th DCA 1985), which hold that in light of section
776.012 our current instruction is incorrect....
...any attempt to commit (applicable felony) in any dwelling house occupied by him. Give if A person is justified in using force likely applicable to cause death or great bodily harm if he reasonably F.S. believes that such force is necessary to prevent 776.012, .031 1....
...nt) continued or resumed the use of force. Force in resisting A person is not justified in using force arrest to resist an arrest by a law enforcement officer who is known, or reasonably appears to be F.S.
776.051(1) and a law enforcement officer. F.S.
776.012 Give if applicable However, if an officer uses excessive force to make an arrest, then a person is justified See Ivester v....
...State, in the use of reasonable force to defend himself
398 So.2d 926 (Fla. (or another), but only to the extent he 1st DCA 1981); Jackson reasonably believes such force is necessary. v. State,
463 So.2d 372 (Fla. 5th DCA 1985). In some instances, the instructions applicable to F.S.
776.012,
776.031 or
776.041 may need to be given in connection with this instruction....
...lted from the justifiable use of force not likely to cause death or great bodily harm. In defense (Defendant) would be justified in using of person force not likely to cause death or great bodily F.S. harm against (victim) if the following two facts 776.012 are proved: Give if 1....
...ant continued or resumed the use of force. Force in resisting A person is not justified in using force to arrest resist an arrest by a law enforcement officer who is known, or reasonably appears to be a law F.S.
776.051(1) and enforcement officer. F.S.
776.012 Give if applicable However, if an officer uses excessive force to make an arrest, then a person is justified in the See Ivester v....
...State, use of reasonable force to defend himself (or
398 So.2d 926 (Fla. another), but only to the extent he reasonably 1st DCA 1981); Jackson believes such force is necessary. v. State,
463 So.2d 372 (Fla. 5th DCA 1985). In some instances, the instructions applicable to F.S.
776.012,
776.031 or
776.041 may need to be given in connection with this instruction....
CopyCited 58 times | Published | Supreme Court of Florida | 2007 WL 1628111
...[1] The Fourth District determined that "[n]othing in the legislation indicates an intent to apply the abrogation of the common law retroactively." Id. at 1003. The Fourth District further reasoned that section
776.013 made a substantive change to section
776.012, Florida Statutes (2004), and it therefore would be a violation of article X, section 9 of the Florida Constitution for section
776.013 to be given retroactive application....
CopyCited 57 times | Published | Supreme Court of Florida | 2008 WL 596805
...any attempt to commit (applicable felony) upon [him] [her], or 3. any attempt to commit (applicable felony) upon or in any dwelling, residence, or vehicle occupied by [him] [her]. Insert and define applicable felony that defendant alleges victim attempted to commit. *1084 Give if applicable. §§
776.012,
776.031, Fla....
...However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend [himself] [herself] (or another), but only to the extent [he] [she] reasonably believes such force is necessary. See §
776.012, Fla. Stat.; Ivester v. State,
398 So.2d 926 (Fla. 1st DCA 1981) ; Jackson v. State,
463 So.2d 372 (Fla. 5th DCA 1985) . In some instances, the instructions applicable to §§
776.012,
776.031, or
776.041, Fla....
...It is a defense to the offense with which (defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of non-deadly force. Definition. "Non-deadly" force means force not likely to cause death or great bodily harm. In defense of person. § 776.012, Fla....
...Give the following instruction if applicable. However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend [himself] [herself] [another], but only to the extent [he] [she] reasonably believes such force is necessary. See §
776.012, Fla. Stat.; Ivester v. State,
398 So.2d 926 (Fla. 1st DCA 1981) ; Jackson v. State,
463 So.2d 372 (Fla. 5th DCA 1985) . In some instances, the instructions applicable to §§
776.012,
776.031, or
776.041, Fla....
CopyCited 45 times | Published | Supreme Court of Florida | 1999 WL 125522
...THE PRIVILEGE OF NONRETREAT FROM THE RESIDENCE Under Florida statutory and common law, a person may use deadly force in self-defense if he or she reasonably believes that deadly force is necessary to prevent imminent death or great bodily harm. See § 776.012, Fla....
CopyCited 44 times | Published | Florida 5th District Court of Appeal | 10 Fla. L. Weekly 223
...The court's observations in Allen were based upon its prior opinion in Ivester v. State,
398 So.2d 926 (Fla. 1st DCA 1981), review denied,
412 So.2d 470 (Fla. 1982), wherein the correlation between self-defense and the use of force by an arresting officer was analyzed: Sections
776.012 and
776.051, Florida Statutes (1974), were both enacted as a part of the same act....
...The effect of reading these statutes in pari materia is to permit an individual to defend himself against unlawful or excessive force, even when being arrested. This view is consistent with the position taken by other jurisdictions that have been confronted with questions relating to statutes similar to Sections
776.012,
776.051 and
843.01, Florida Statutes....
...Any damage done by an improper arrest can be repaired through the legal processes.
398 So.2d at 930. Thus, it is apparent that while an arrest, whether lawful or unlawful, may never be resisted with violence, [1] any excessive force accompanying such arrest may be forcefully defended against as provided by section
776.012, Florida Statutes (1983)....
...This is true and, therefore, the issue of self-defense was a jury issue. But, given the erroneous instruction that there could be no self-defense employed against an arresting officer, this issue actually was removed from the jury's province. Since self-defense under section 776.012 is an available defense in regard to both a charge of battery and resisting arrest with violence, and since there was evidence of excessive force which the jury could have believed, we reverse the convictions on counts two and three and remand for a new trial on both charges....
...ORFINGER and COWART, JJ., concur. NOTES [1] Section
776.051(1), Florida Statutes (1983), provides: A person is not justified in the use of force to resist an arrest by a law enforcement officer who is known, or reasonably appears, to be a law enforcement officer. [2] Section
776.012, Florida Statutes (1983), provides: Use of force in defense of person....
CopyCited 38 times | Published | Supreme Court of Florida | 1996 WL 681384
...rt for the common law defense of necessity or justification. Hill's memorandum in opposition did not directly address the State's argument but instead argued that Hill was entitled to present this evidence to establish the statutory defense found in section
776.012, Florida Statutes (1993), entitled "Use of force in defense of person." That statute states in relevant part: [A person] is justified in the use of deadly force only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another or to prevent the imminent commission of a forcible felony. While section
776.012 is not identical to the defense of necessity, see Linnehan v. State,
454 So.2d 625 (Fla. 2d DCA 1984), [4] we find the case law cited by the State relevant to our analysis here, as both the necessity defense and section
776.012 contemplate that a defendant may act to prevent some "harm," even if the defendant's act otherwise would be unlawful. Linnehan,
454 So.2d at 626; §
776.012....
...bortion is not a recognized harm and cannot be used to invoke the necessity defense. See Roe v. Wade,
410 U.S. 113,
93 S.Ct. 705,
35 L.Ed.2d 147 (1973); § 390.001, Fla. Stat. (1993). For the same reason, abortion also cannot constitute "harm" under section
776.012....
...court's order on Hill's motion in limine and our rejection of his claimed necessity defense. As the majority correctly explains, Hill's religious belief that abortion is evil is not legally cognizable as a "necessity" defense under the common law or section 776.012....
...We also note that Hill indicated that he would elect to represent himself even if he did not have the benefit of standby counsel. [3] We consider this issue preserved for review. At trial, after the State rested, Hill repeated his desire to present the defense afforded in section 776.012, Florida Statutes (1993)....
...Horn, 126 Wis.2d 447, 377 N.W.2d 176 (App.1985), aff'd, 139 Wis.2d 473, 407 N.W.2d 854 (1987). [6] Our conclusion that abortion is not a legally cognizable harm disposes of the need to address whether an unborn fetus is "another" within the meaning of section 776.012....
CopyCited 38 times | Published | Florida 1st District Court of Appeal
...Lowery, supra, at 1326; see also Meeks v. State,
369 So.2d 109 (Fla. 1st DCA 1979); Morley v. State,
362 So.2d 1013 (Fla. 1st DCA 1978). The Lowery court specifically left open the question of a defendant's right to use force in self-defense pursuant to Section
776.012, Florida Statutes (1979), which states in part that: "A person is justified in the use of force, except deadly force, against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself ... against such other's imminent use of unlawful force... ." See also Pani v. State,
361 So.2d 170 (Fla. 3rd DCA 1978) reh. denied. Sections
776.012 and
776.051, Florida Statutes (1974), were both enacted as a part of the same act....
...The effect of reading these statutes in pari materia is to permit an individual to defend himself against unlawful or excessive force, even when being arrested. This view is consistent with the position taken by other jurisdictions that have been confronted with questions relating to statutes similar to Sections
776.012,
776.051 and
843.01, Florida Statutes....
...Did you have occasion to become involved, not you involved personally, but do you have information about an accident that occurred involving the defendant, Danny Ivester? A: Yes, sir. (T.R. 144) [2] We note that there are limitations upon the amount of force that one can use in self-defense. § 776.012, Fla....
CopyCited 28 times | Published | Florida 4th District Court of Appeal
...3d DCA 1976). And since it has not been alleged that the officer in this case used unlawful force in effectuating the arrest, it has not been necessary for us to consider the question of a defendant's right to use force in defense of his person under Section 776.012....
CopyCited 22 times | Published | Florida 2nd District Court of Appeal
...Parnes,
Assistant Attorney General, Tampa, for
Respondent.
BADALAMENTI, Judge.
Willie Jefferson petitions this court for a writ of prohibition seeking review
of the trial court's order summarily denying his motion to dismiss asserting Stand Your
Ground immunity from prosecution under sections
776.012(2) and
776.032(1), Florida
Statutes (2017)....
...second-degree murder of his roommate on September 2, 2017. Petitioner filed a
motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(b), asserting
Stand Your Ground immunity from prosecution because he acted in justifiable self-
defense, as defined in section 776.012, in stabbing his roommate.1
1Section 776.012(2) provides that "[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...
...1996))).
A Brief History of Florida's Stand Your Ground Law
As background, the Stand Your Ground statute was first enacted in 2005.
Ch. 05-27, § 4, at 200, Laws of Fla.; see also §
776.032, Fla. Stat. (2005) ("A person
who uses force as permitted in [section]
776.012, [section]
776.013, or [section]
776.031
is justified in using such force and is immune from criminal prosecution ....
...criminal prosecution to "raise[]" a "prima facie claim" of self-defense as described in
section
776.032(1). See §
776.032(4) (referring to section
776.032(1)'s inclusion of the
affirmative defenses of justifiable self-defense and use of force set forth in sections
776.012, .013, and .031)....
...criminal defendant in a pretrial rule 3.190(b) motion to dismiss. The trial court is then to
determine whether, at first glance and assuming all facts as true, the alleged facts set
forth in the motion support the elements of self-defense in either section
776.012,
776.013, or
776.031....
CopyCited 21 times | Published | Supreme Court of Florida
...Conversely, he asserts that when the facts are applied to the statute, the statute was not violated by his acts. Appellant premises his argument on the language of section
782.07 which states it is not manslaughter if the acts fall within "lawful justification according to the provisions of chapter 776." Section
776.012 of that chapter, entitled "Use of force in defense of person", and regarding use of deadly force provides in pertinent part: However, he is justified in the use of deadly force only if he reasonably believes that such force is necessa...
...The repeal of section 776.021 allegedly creates a greater right to use deadly force to protect real property, other than a dwelling, pursuant to section
776.031 and to defend against the threat of great bodily harm or the imminent commission of a forcible felony pursuant to section
776.012, with no concomitant right to likewise defend a dwelling....
...." This argument, however, is based on the faulty premise that a property owner has the "right", pursuant to section
776.031, to use deadly force to protect his real property, other than his dwelling, from the imminent commission of a forcible felony, or that a person has the "right", pursuant to section
776.012, to use deadly force to protect himself or another from imminent death or great bodily harm or the imminent commission of a forcible felony, but that an owner of a dwelling has no similar "right" to defend the dwelling....
CopyCited 20 times | Published | Florida 5th District Court of Appeal | 1998 WL 601299
...The question here is whether the trial court was correct in concluding that the state failed to sustain its burden of proof. The state concedes that, in order to establish its case against Rivera, it had the burden of rebutting Rivera's claim that he shot the victim in self-defense. Section 776.012, Florida Statutes (1993), defines selfdefense as follows: "[A person] is justified in the use of deadly force only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or ano...
...The state's witnesses testified that only McCrae exited the truck and disputed Rivera's testimony that McCrae was armed. However, even if McCrae was the only one to exit the truck and he was unarmed, Rivera established a prima facie case of self-defense as defined by section 776.012, Florida Statutes (1993)....
CopyCited 20 times | Published | Florida 4th District Court of Appeal | 1994 WL 178067
...ng. Because the deadly force instruction was given on the claim of self-defense, the jury heard that deadly force is justified only to prevent imminent death, great bodily harm to himself or another or to prevent the imminent commission of a felony. § 776.012, Fla....
CopyCited 20 times | Published | Supreme Court of Florida | 14 Fla. L. Weekly 599, 1989 Fla. LEXIS 1259, 1989 WL 156437
...coverage is nonexistent for the homeowner defending his home and family, because an intentional act exclusion is present in practically every policy and is nonnegotiable. Marshall claims that the public policy promoting self-defense is evidenced by section 776.012, Florida Statutes (1987), which authorizes the use of force in defense of one's person under certain circumstances....
CopyCited 19 times | Published | Supreme Court of Florida | 2006 WL 1471998
...any attempt to commit (applicable felony) upon or in any dwelling house, residence, or vehicle occupied by [him] [her], or. 4. any attempt to commit (applicable felony) in any dwelling house occupied by [him] [her]. Insert and define applicable felony that defendant alleges victim attempted to commit . Give if applicable. §§
776.012,
776.031, Fla....
...However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend [himself] [herself] (or another), but only to the extent [he] [she] reasonably believes such force is necessary. See §
776.012, Fla. Stat.; Ivester v. State,
398 So.2d 926 (Fla. 1st DCA 1981) ; Jackson v. State,
463 So.2d 372 (Fla. 5th DCA 1985) . In some instances, the instructions applicable to §§
776.012,
776.031, or
776.041, Fla....
...It is a defense to the offense with which (defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of non-deadly force not likely to cause death or great bodily harm. Definition. "Non-deadly" force means force not likely to cause death or great bodily harm. In defense of person . § 776.012, Fla....
...Give the following instruction if applicable . However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend [himself] [herself] [another], but only to the extent [he] [she] reasonably believes such force is necessary. See §
776.012, Fla. Stat.; Ivester v. State,
398 So.2d 926 (Fla. 1st DCA 1981) ; Jackson v. State,
463 So.2d 372 (Fla. 5th DCA 1985) . In some instances, the instructions applicable to §§
776.012,
776.031, or
776.041, Fla....
CopyCited 18 times | Published | Florida 3rd District Court of Appeal | 2014 WL 20660, 2014 Fla. App. LEXIS 15
...ing this interview, he subsequently was arrested and charged with two counts of second degree murder. Mobley claimed below and now claims here that these facts are undisputed and demonstrate that he is immune from prosecution as provided by sections
776.012 and
776.032 of the Florida Statutes....
...such force is necessary to either prevent imminent death or great bodily harm to self or others or to prevent the imminent commission of a forcible felony. See §
776.032, Fla. Stat. (2013) (providing that a “person who uses force as permitted in s.
776.012, s.
776.013, or s.
776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force”); see also §
776.012(1), (2), Fla....
... and second, because Mobley should have brandished his gun, fired a warning shot or told the attackers to stop because he had a gun. We disagree for the following reasons. As a preliminary matter, Mobley was not required to warn that he had a gun. Section 776.012(1), (2), clearly states where the danger of death, great bodily harm or the commission of a forcible felony is “imminent,” the use of deadly force is justified....
...Because the preponderance of the evidence demonstrates that had the proper standard been applied, Mobley’s use of deadly force was justified, the motion to dismiss should have been granted. See Dennis v. State,
51 So.3d 456, 460 (Fla.2010) (confirming that, where a defendant claims immunity from prosecution under sections
776.012,
776.013 and
776.032, the court below must determine whether that defendant has shown by a preponderance of the evidence that the immunity attaches); Vino,
100 So.3d at 717 (“When a defendant invokes the statutory immunity, the trial court...
CopyCited 16 times | Published | Florida 3rd District Court of Appeal
...orce which is likely to cause death or great bodily harm," §
776.06, Fla. Stat. (1979)] to repel an unlawful attack upon himself if "he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself... ." §
776.012 Fla....
CopyCited 15 times | Published | Florida 3rd District Court of Appeal
...he safety cock notch was functional. The defendant's direct testimony concerning the victim's threats and his menacing approach together with the defendant's assertion that he was in fear of his life made out a prima facie case of self defense under Section 776.012, Florida Statutes (1977)....
CopyCited 14 times | Published | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 16361, 2011 WL 4949803
...Ordinarily, we would simply direct that the trial court reduce the second degree murder convictions to manslaughter convictions. However, in this case, an error in the jury instructions on self-defense warrants a new trial. [2] By way of background, section
776.012, Florida Statutes (2006), provides that a person is justified in the use of deadly force and does not have a duty to retreat if: (1) He or she reasonably believes that 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; or (2) Under those circumstances permitted pursuant to s.
776.013. §
776.012, Fla....
CopyCited 14 times | Published | Florida 1st District Court of Appeal | 2001 WL 395171
...At that point, the deputy had sprayed Appellant with mace. The first factor in the Alderman test contemplates that the requested instruction accurately states the applicable law. See
486 So.2d at 677. The applicable law is set forth in the following 1997 statutes:
776.012 Use of force in defense of person.A person is justified in the use of 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 such other's imminent use of unlawful force....
...Appellant that the facts in the case support giving the instruction, and the instruction was necessary to resolve all issues in the case. See Alderman,
486 So.2d at 677; Jackson v. State,
463 So.2d 372, 374 (Fla. 5th DCA 1985) (as self-defense under §
776.012, Fla.Stat., is an available defense regarding charges of battery and resisting arrest with violence, and as there was evidence of excessive force that the jury could have believed, convictions for these two offenses were reversed and remanded for new trial); Holley v....
CopyCited 13 times | Published | Supreme Court of Florida | 2017 WL 4296212
...A person is justified in using 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.
§
776.012(1), Fla. Stat. (2008).1 Section
776.032 also provides immunity for a
person who lawfully uses force in self-defense:
(1) A person who uses force as permitted in s.
776.012, s.
776.013, or s....
CopyCited 13 times | Published | Florida 4th District Court of Appeal | 2006 WL 2612793
...[6] Murray and his roommate fought outside their apartment. The State charged that Murray introduced a butcher knife into the fight, but he claimed that the other guy first wielded a pocket knife against him. The key fact for the trial was who brought the knife to the fist fight. [7] § 776.012, Fla....
...State: Okay, I think I have it. Court: We have it, because he's charged with it. But, I need it again for State: Okay Court: I must read it again in its entirety. State: Okay. Okay. Court: So I need it inserted there State: Okay Court: right after this. Okay. Then
776.012,
776.031....
CopyCited 12 times | Published | Supreme Court of Florida | 10 Fla. L. Weekly 627
...force to resist an arrest." In Ivester, the district court construed section
776.051(1), Florida Statutes (Supp. 1974), which provides that a person is not justified in the use of force to resist a known law enforcement officer, in pari materia with section
776.012, Florida Statutes (Supp....
...t an individual to defend himself against unlawful or excessive force, even when being arrested. This view is consistent with the position taken by other jurisdictions that have been confronted with questions relating to statutes similar to sections
776.012,
776.051 and 848.01, Florida Statutes....
...dent thing for that person to do is to disarm the officer if possible. Therefore I would approve the district court decision in part and quash in part and remand for a new trial on all the charges. SHAW, J., concurs. NOTES [1] Section
776.051(1) and section
776.012 have remained unchanged to date....
CopyCited 12 times | Published | Florida 2nd District Court of Appeal | 1996 WL 164632
...him to serve a mandatory term of three years in prison. This timely appeal followed. On appeal the appellant contends that the evidence established that his conduct was justified and that he was therefore entitled to an instruction on self-defense. Section 776.012, Florida Statutes (1993), provides as follows: Use of force in defense of person....
...The appellant testified that he was afraid of being attacked and, therefore, that he was justified in waving his unloaded, holstered pistol in an effort to scare the victim away. Because this evidence supported his theory that his conduct was justified under section 776.012, a jury instruction on justifiable use of force should have been given....
...fiable use of deadly force. In order to be entitled to that instruction, the appellant was required to present evidence that he reasonably believed that deadly force was necessary to prevent imminent death or great bodily harm to himself or another. § 776.012....
CopyCited 11 times | Published | Florida 5th District Court of Appeal | 1998 WL 166551
...Under Florida law, a person is justified in using deadly force in self-defense only if he reasonably believes such force is necessary to protect one's self from imminent death or great bodily harm or to prevent the imminent commission of a forcible felony. § 776.012, Florida Statutes (1995)....
CopyCited 11 times | Published | Florida 3rd District Court of Appeal | 2015 Fla. App. LEXIS 5039, 2015 WL 1578849
...1 At a pretrial evidentiary
hearing to determine the factual basis for the applicability of immunity,2 the trial
1 §
776.032 (1), Florida Statutes (2011), also known as the Stand Your Ground law,
provides:
A person who uses or threatens to use force as permitted in s.
776.012,
s.
776.013, or s.
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 . . .”
§
776.012(2), Florida Statutes (2014) provides:
(2) 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 deat...
CopyCited 11 times | Published | Florida 1st District Court of Appeal | 11 Fla. L. Weekly 782
...Gen., Patricia Conners, Asst. Atty. Gen., Tallahassee, for appellee. PER CURIAM. Larsen appeals his conviction of second degree murder after a jury trial, contending: (1) that the trial court erred in refusing to instruct the jury on justifiable use of non-deadly force under section 776.012, Florida Statutes (1983); (2) the evidence at trial was insufficient to support a conviction of second degree murder; and (3) the trial court erred in sentencing appellant under sentencing guidelines in effect at the time of sentencing, rather than at the time of commission of the offense....
...and altercation in which he slapped his wife and she fell backward to the floor. On the first point, we agree with the state's contention that it was not error for the trial court to refuse an instruction concerning the use of non-deadly force under section 776.012, Florida Statutes (1983)....
CopyCited 11 times | Published | Florida 2nd District Court of Appeal | 2013 WL 1442150, 2013 Fla. App. LEXIS 5670
...Hair,
17 So.3d at 805 . B. Propriety of the Denial of the Motion to Dismiss on the Merits The Stand Your Ground law is codified in chapter 776, Florida Statutes (2009). Section
776.032(1) grants criminal immunity to persons using force as permit *218 ted in sections
776.012,
776.013, or
776.031. In this case, Little argued he was entitled to immunity under section
776.032(1) because his use of force was permitted in section
776.012(1). Section
776.012(1) authorizes the use of deadly force when a defendant “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.” A defendant must establish entitlement to immunity under the Stand Your Ground law by a preponderance of the evidence....
...However, that does not end our analysis because the State has asserted another basis on which to uphold the circuit court’s ruling, or a “tipsy coachman” argument. 2 C. State’s Tipsy Coachman Argument The State argues that regardless of whether Little established that his use of deadly force was permitted in section
776.012(1), he was not entitled to immunity under section
776.032(1) because his use of force would not have been permitted in section
776.013(3)....
...Because Little was a felon in illegal possession of a firearm, the State submits that he was engaged in an unlawful activity and cannot obtain immunity under any of these statutory provisions. Section
776.032(1) provides, in pertinent part, “A person who uses force as permitted in s.
776.012, s.
776.013, or s.
776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force.... ” Because section
776.032(1) grants criminal immunity to persons using force as permitted in section
776.012, section
776.013, or section
776.031, it should be construed to allow a defendant to claim immunity based on the use of force permitted in any of these provisions....
...n of the Legislature to construe it conjunctively as meaning ‘and.’ ”). Despite the disjunctive language in section
776.032(1), the State asserts that the legislature did not intend to provide immunity based on the use of force as permitted in section
776.012(1) because section
776.012(1) conflicts with section
776.013(3). According to the State, both sections
776.012(1) and
776.013(3) permit the use of deadly force based on a reasonable belief such force is necessary to prevent imminent death or great bodily harm or the commission of a felony. The State argues that section
776.013(3) limits the justifiable use of deadly force to persons who are not engaged in illegal activity and who are in a place they have a legal right to be. The State asserts that section
776.012(1) cannot provide a separate basis for immunity because it would provide immunity for a person engaged in an unlawful activity and thus render section ....
...subject or object be construed together to harmonize the statutes and to give effect to the Legislature’s intent.’ ” Id. (quoting Fla. Dep’t of State v. Martin,
916 So.2d 763, 768 (Fla.2005)). We conclude that the plain language of sections
776.012,
776.013, and
776.032 can be understood as granting immunity to a person who qualifies under either section
776.012(1) or
776.013(3). To arrive at this conclusion, we will examine the provisions in sections
776.012 and
776.013 in pari materia to determine whether the legislature intended for each section to provide a separate basis for immunity under section
776.032(1)....
...We will then examine the effect of the enactment of the Stand Your Ground law on that body of law to discern the extent to which the legislature intended to change that law. Prior to the enactment of the Stand Your Ground law, the justifiable use of deadly force by and against a civilian was governed by section 776.012. Section 776.012, Florida Statutes (2004), permitted the use of deadly force if a person “reasonably believes that such, force is necessary' *220 to prevent imminent death or great bodily harm to himself or herself or another or to prevent the immin...
...There was an exception to the duty to retreat for a person claiming self-defense in his or her own residence; that exception was part of the “castle doctrine.” 3 Id. In 2005, the legislature enacted the Stand Your Ground law which amended sections
776.012 and .031 and created sections
776.013 and .032. Ch. 2005-27, §§ 1-4, at 200-02, Laws of Fla. Section
776.012 still permits the justifiable use of deadly force if a person “reasonably believes that 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.” §
776.012(1). But the Stand Your Ground law added language permitting the justifiable use of deadly force “[u]nder those circumstances permitted pursuant to s.
776.013.” §
776.012(2). It also eliminated the common law duty to retreat for persons justifiably using deadly force under either section
776.012(1) or
776.013. Section
776.012, which is entitled “Use of force in defense of person,” now provides as follows: A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such condu...
...easonable belief “it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.” Id. We do not agree that there is a conflict between the provisions in sections
776.012(1) and
776.013(3)....
...Section
776.013(3) provides for the justifiable use of deadly force by a law-abiding person outside of the “castle,” but it does not preclude persons who are engaged in an unlawful activity from using deadly force in self-defense when otherwise permitted. In fact, the Stand Your Ground law expressly amended section
776.012 to provide that the use of deadly force is justified under the circumstances set forth in both sections
776.012(1) and
776.013. Nor do we agree that construing section
776.012(1) as a distinct statute permitting the justifiable use of deadly force would render section
776.013(3) meaningless....
...Section
776.013(3) applies when a person is (1) not engaged in an unlawful activity and (2) attacked in any place outside the “castle” as long as (3) he or she has a right to be there. A person who does not meet these three requirements would look to section
776.012(1) to determine whether the use of deadly force was justified....
...The presumptions in sections
776.013(1) and (4) apply only when a person is attacked in the “castle.” And the presumption in section
776.013(1) does not apply if the person was engaged in an unlawful activity. See §
776.013(2)(c). The requirements under sections
776.012(1) and
776.013(3) are not identical. A person proceeding under section
776.013(3) would have to prove that he or she reasonably believed the use of deadly force was “necessary ... to prevent death or great bodily harm ... or to prevent the commission of a forcible felony.” Under section
776.012(1), a person would have to prove that he or she reasonably believed the use of deadly force was “necessary to prevent imminent death or great bodily harm ......
...ged in an unlawful activity would not be entitled to claim immunity under section
776.032(1) based on the use of force as permitted in section
776.013(3). But section
776.013(3) provides only one means of obtaining immunity under section
776.032(1). Section
776.012(1) provides another means of obtaining immunity for individuals who would not qualify for immunity under section
776.013(3). And section
776.032(1) expressly provides for immunity based on the use of force as permitted in section
776.012. In summary, section
776.032(1) provides for immunity from criminal prosecution for persons using force as permitted in section
776.012, section
776.013, or *222 section
776.031....
...nder that statute. See Darling v. State,
81 So.3d 574, 578 (Fla. 3d DCA 2012), review denied,
107 So.3d 403 (Fla.2012); Dorsey v. State,
74 So.3d 521, 527 (Fla. 4th DCA 2011). However, Little sought immunity based on the use of force as permitted in section
776.012(1)....
...His status as a felon in illegal possession of a firearm did not preclude that claim of immunity. And, as set forth above, Little established by a preponderance of the evidence that his use of force was justified to prevent his imminent death or great bodily harm as provided for in section 776.012(1)....
...And the court explained that under section
776.013(3) the defendant was not entitled to immunity because he was engaged in an unlawful activity. Id. The Fourth District has not addressed whether a defendant would be entitled to immunity based on the use of force as permitted in section
776.012(1). As we have already explained, section
776.032(1) provides for immunity based on the use of force as permitted in three separate statutory provisions: section
776.012, section
776.013, or section
776.031. As pertains to the circumstances here, even though Little’s use of force was not permitted in section
776.013(3), it was permitted in section
776.012(1)....
...nvoke that immunity by persons charged with serious crimes. We therefore certify the following question as one of great public importance: IS A DEFENDANT WHO ESTABLISHES BY A PREPONDERANCE OF THE EVIDENCE THAT HIS USE OF DEADLY FORCE IS PERMITTED IN SECTION
776.012(1), FLORIDA STATUTES (2009), ENTITLED TO *223 IMMUNITY UNDER SECTION
776.032(1) EVEN THOUGH HE IS ENGAGED IN AN UNLAWFUL ACTIVITY AT THE TIME HE USES THE DEADLY FORCE? Petition granted....
CopyCited 10 times | Published | Florida 3rd District Court of Appeal
...Assuming, arguendo, that testimony that a defendant was subjected to or aware of prior assaultive behavior by disgruntled car owners is relevant as tending to prove the material fact [1] that he reasonably believed that his show of force was necessary to defend himself against the imminent use of force, see § 776.012, Fla....
...However, this rule of admissibility is merely an exception to the rule that evidence of the character of the victim is ordinarily irrelevant, see §
90.404, Fla. Stat. (1983), and does not purport to define the outer limits of relevancy where a self-defense claim is made. [2] Section
776.012, Florida Statutes (1981), provides: "Use of force in defense of person....
CopyCited 10 times | Published | Florida 1st District Court of Appeal | 2012 Fla. App. LEXIS 13360, 2012 WL 3238759
...Mederos petitions for a writ of prohibition following the denial of his motion to dismiss an information charging him with aggravated battery with a deadly weapon (a knife). Below and on appeal, petitioner argues that he is immune from prosecution under Florida’s so-called “Stand Your Ground Law.” See §§
776.012,
776.031-.032, Fla....
...Ribas was over and he was removed from the zone of imminent danger, the putative forcible felony was over. At this point any right that Defendant had to use deadly force in defense of Mr. Ribas terminated as to the forcible felony. [Citation omitted.] Florida Statute sections
776.012,
776.013, and
776.031, when read together, allow for the use of deadly force only to prevent the commission of a forcible felony or for self-defense or defense of another, when the person reasonably believes it is necessary to prevent death or great bodily harm....
...e felony,” and the person using such force “is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another....” §
776.013(1). Chapter 2005-27 amended two existing statutes: sections
776.012 and
776.031; and it created two new statutes: sections
776.013 and
776.032. As amended, section
776.012, Florida Statutes, provides: A person is justified in using 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....
...tted pursuant to s.
776.013 [which permits use of defensive force intended or likely to cause death or great bodily harm in a dwelling, residence or occupied vehicle]. [ 1 ] Section
776.032 provides that a person using force as permitted by sections
776.012,
776.013 or
776.031, “is immune from criminal prosecution and civil action for the use of such force” subject to exceptions not applicable here....
CopyCited 9 times | Published | Supreme Court of Florida | 35 Fla. L. Weekly Supp. 1, 2010 Fla. LEXIS 2, 2010 WL 26546
...any attempt to commit (applicable felony) upon [him] [her], or 3. any attempt to commit (applicable felony) upon or in any dwelling, residence, or vehicle occupied by [him] [her]. Insert and define applicable felony that defendant alleges victim attempted to commit. Give if applicable. §§
776.012,
776.031, Fla....
...However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend [himself] [herself] (or another), but only to the extent [he] [she] reasonably believes such force is necessary. See §
776.012, Fla. Stat.; Ivester v. State,
398 So.2d 926 (Fla. 1st DCA 1981) ; Jackson v. State,
463 So.2d 372 (Fla. 5th DCA 1985) . In some instances, the instructions applicable to §§
776.012,
776.031, or
776.041, Fla....
...It is a defense to the offense with which (defendant) is charged if the [death of] [injury *646 to] (victim) resulted from the justifiable use of non-deadly force. Definition. "Non-deadly" force means force not likely to cause death or great bodily harm. In defense of person. § 776.012, Fla....
...Give the following instruction if applicable. However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend [himself] [herself] [another], but only to the extent [he] [she] reasonably believes such force is necessary. See §
776.012, Fla. Stat.; Ivester v. State,
398 So.2d 926 (Fla. 1st DCA 1981) ; Jackson v. State,
463 So.2d 372 (Fla. 5th DCA 1985) . In some instances, the instructions applicable to §§
776.012,
776.031, or
776.041, Fla....
CopyCited 8 times | Published | Florida 1st District Court of Appeal | 2008 WL 4722492
...Several statutes set out the parameters as to what force is allowed under particular circumstances. Section
776.032(1), Florida Statutes (2006), states:
776.032 Immunity from criminal prosecution and civil action for justifiable use of force. (1) A person who uses force as permitted in s.
776.012, s....
...e person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant. Section 776.012, Florida Statutes (2006), states: 776.012 Use of force in defense of person....
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 2013 WL 2359485, 2013 Fla. App. LEXIS 8593
...However, no evidence was introduced to establish the nature of the medical hold. . §
776.032, Fla. Stat. . We find there was sufficient evidence presented at trial to survive a motion for judgment of acquittal on the lesser included offense of battery pursuant to section
784.03(1), Florida Statutes. . See §
776.012, Fla....
CopyCited 8 times | Published | Supreme Court of Florida | 32 Fla. L. Weekly Supp. 49, 2007 Fla. LEXIS 119, 2007 WL 174332
...It is a defense to the offense with which (defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of non-deadly force. Definition. "Non-deadly" force means force not likely to cause death or great bodily harm. In defense of person. § 776.012, Fla....
...*1162 However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend [himself] [herself] [another], but only to the extent [he] [she] reasonably believes such force is necessary. See §
776.012, Fla. Stat.; Ivester v. State,
398 So.2d 926 (Fla. 1st DCA 1981) ; Jackson v. State,
463 So.2d 372 (Fla. 5th DCA 1985) . In some instances, the instructions applicable to §§
776.012,
776.031, or
776.041, Fla....
CopyCited 8 times | Published | Florida 3rd District Court of Appeal | 2003 WL 469502
...Falco was a homeowner who had been burglarized several times. He set a spring gun aimed at the point the burglar had been using for entry. While Falco was gone, the burglar came in and was fatally shot. Falco argued, among other things, that under the statute on justifiable use of force, § 776.012, Fla....
...The Florida Supreme Court rejected the defendant's argumentbut not by modifying the definition of forcible felony to exclude burglary of an unoccupied structure. The correct analysis is found instead in the statute on justifiable use of force. As quoted in Falco: Section 776.012 ..., entitled "Use of force in defense of person", and regarding use of deadly force provides in pertinent part: However, he is justified in the use of deadly force only if he reasonably believes that such force is necessary to preven...
...d. Thus, the Falco decision establishes that burglary is a forcible felony as enumerated in section
776.08, Florida Statutes. Whether deadly force is permissible to defend against a forcible felony depends on the wording of the use of force statute (§
776.012), not the forcible felony definition (§
776.08)....
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 2007 WL 4547445
...revent the imminent commission of a forcible felony. Non-deadly force may be used when and to the extent that a person reasonably believes that the use of force is necessary to defend one's self or another against the imminent use of unlawful force. § 776.012, Fla....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 17205, 2011 WL 5138607
...4th DCA 2002) (citing Scholl v. State,
94 Fla. 1138,
115 So. 43, 44 (1927)). Vila argues that because he presented some evidence that he was defending himself from the victim's attack, the trial court erred in denying his requested jury instruction based on section
776.012, Florida Statutes (2010), which provides, in part: A person is justified in using 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....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 2001 WL 219326
...ence of Lora's prior specific acts of violence. Under Florida statutory and common law, a person may use deadly force in self defense if he or she reasonably believes that deadly force is necessary to prevent imminent death or great bodily harm. See § 776.012, Fla....
CopyCited 7 times | Published | Florida 1st District Court of Appeal
...We conclude that the trial court did not commit reversible error in refusing to instruct the jury on the elements of self-defense. A person is justified in the use of deadly force to defend himself only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself. Section 776.012, Fla....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 1998 WL 31493
...An instruction on use of non-deadly force was given, [2] but the court *1139 refused to instruct on use of deadly force. [3] However, since Curington tried to defend himself by using a knife, the deadly force instruction was also appropriate, under the circumstances of this case. Section 776.012, Florida Statutes (1993) provides: Use of force in defense of person.A person is justified in the use of force, except deadly force against another, when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such imminent use of unlawful force....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 20857, 2011 WL 6847813
...believes that such force is necessary to prevent imminent death or great bodily harm to himself *384 or herself or another or to prevent the imminent commission of a forcible felony; or (2) Under those circumstances permitted pursuant to s.
776.013. §
776.012, Fla....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 2014 Fla. App. LEXIS 12999, 2014 WL 4114334
...The law governing the justifiable use of deadly force in self-defense is contained in chapter 776, Florida Statutes (2011), certain provisions of which are colloquially known as the “Stand Your Ground” law. The following two sections of the law are arguably at play: 776.012 Use of force in defense of person....
...it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony. (Emphasis added). Garrett argues that he established that his use of deadly force was justified under section
776.012(1) to prevent Ford’s imminent commission of a forcible felony (ie., attempted second-degree murder and/or aggravated battery against Garrett). Therefore, he submits, the court erred by instructing the jury regarding his unlawful activity because it required the jury to consider whether he had a duty to retreat in a situation where no such duty existed. Section
776.012(1) provides that a person using deadly force in circumstances in which the perceived threat of death or great bodily harm is imminent does not have a duty to retreat. While Garrett acknowledges that a “duty to retreat” analysis would be necessary under section
776.013(3) because of his unlawful activity, he contends that sections
776.012 and
776.013 provide separate and distinct bases under which the justifiable use of deadly force may be asserted, so that the “unlawful activity” preclusion in the latter is irrelevant to the operation of the former. In support of his position, Garrett relies on Little v. State,
111 So.3d 214 (Fla. 2d DCA 2013), which held that a person is not precluded from claiming immunity from criminal prosecution under the circumstances in section
776.012, even though the person was engaged in unlawful activity at the time. Id. at 221-22 . The Court reasoned that section
776.032(1), Florida Statutes (2009), provides immunity from criminal prosecution for persons using force as permitted in section
776.012 or section
776.013, and the requirements of each are not identical. Id. Because Little had established by a preponderance of the evidence that his use of force was justified to prevent imminent death or great bodily *471 harm as required in section
776.012(1), he was entitled to immunity, regardless of his status as a felon in illegal possession of a firearm....
...The arguments raised by State in Little are essentially the same as those raised in the instant case. The State maintains that the extraordinary self-defense privilege afforded by the “Stand Your Ground” law is reserved for law-abiding citizens only. It asserts that section
776.012(1) does not provide a basis for a person engaged in unlawful activity to be excused from the use of deadly force in self-defense, for such an interpretation would directly contradict the express legislative intent of section
776.012 and render the “unlawful activity” preclusion of section
776.013(B) meaningless....
...l’s en banc decision in Hill v. State,
143 So.3d 981 ,
2014 WL 3434445 (Fla. 4th DCA July 16, 2014), we reject the State’s position. Garrett’s affirmative defense of self-defense, like Little’s claim of immunity, was based on the language in section
776.012....
...Because Garrett presented some evidence to support his claim of justifiable use of deadly force to prevent imminent death or great bodily harm or the imminent commission of a forcible felony by Ford, Garrett was entitled to request and receive an instruction reflecting section 776.012(1)....
...his theory of defense if there is any evidence to support such instructions.”). .The fact that he was a convicted felon in unlawful possession of a firearm did not apply to the jury’s consideration of whether Garrett had a duty to retreat under section 776.012(1)....
...Like Garrett, Hardison was a convicted felon in possession of a firearm at the time of the incident. Id. And as in the instant case, the trial court in Hardison instructed the jury on justifiable use of deadly force, using the standard instruction that tracks section
776.012, combined with instructions relating to section
776.013: “[i]f the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his...
...Dorsey v. State,
74 So.3d 521 (Fla. 4th DCA 2011), not be read. When asked for the legal basis for the objection, defense counsel stated that the case doesn’t require that the challenged language be included in the jury instruction. . We note that section
776.012, Florida Statutes (2011), has since been amended to include the "unlawful activity” preclusion contained in
776.013(3). The relevant portion of section
776.012 now reads: "[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 forc...
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 2006 WL 2871859
...Ultimately, they found Mr. Jenkins guilty of the lesser offense of manslaughter without a weapon, an apparent partial jury pardon. Mr. Jenkins was sentenced as a habitual offender to twenty-five years' imprisonment, followed by five years' probation. Pursuant to section 776.012, Florida Statutes (2004), a "person is justified in the use of deadly force only if he or she reasonably believes that 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." See also Weiand v....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 1988 WL 103857
...contends that the trial court erred in sustaining the state's objection to E.B.'s testimony that he was aware that *1054 Randall had a reputation as a good fighter and that on a previous occasion Randall had threatened to beat E.B. A defendant who asserts that he acted in self-defense, § 776.012, Fla....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 2014 Fla. App. LEXIS 3620, 39 Fla. L. Weekly Fed. D 543
...tantial evidence.” Darling v. State,
81 So.3d 574, 577 (Fla. 3d DCA 2012). Chapter 776, Florida Statutes, encompasses what is referred to as Florida’s “Stand Your Ground” law. Under section
776.032(1): A person who uses force as permitted in s.
776.012, s.776.013, or s.776.031 is justified in using such force and is immune from criminal prosecution and civil ac *539 tion for the use of such force, unless the person against whom force was used is a law enforcement officer.... Section
776.012 (“Use of force in defense of person”) provides in pertinent part: A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary...
...Even if we were to find that the guilty plea to misdemeanor battery upon Mrs. Pages established as a matter of law that Tapia was “engaged in criminal activity” under section
776.013, it is beside the point: Tapia was entitled to, and did, assert immunity not only under section
776.013, but under section
776.012 as well. Under section
776.012, Tapia would be justified in using non-deadly force against Dr....
...We also acknowledge that the person seeking immunity under section
776.013(3) must establish that he was “not engaged in unlawful activity.” However, this “not engaged in unlawful activity” language is not present in the applicable portion of section
776.012, which unambiguously provides for the justified use of non-deadly force. Section
776.032, by its express language, provides immunity for a person “who uses force as permitted in sections
776.012,
776.013 or
776.031.” This language evidences a clear legislative intent to provide alternative bases for asserting immunity under the Stand Your Ground Law....
...6 Therefore, even if Tapia was determined to have been “engaged in unlawful activi *540 ty” (the misdemeanor battery upon Mrs. Pages) at the time of his use of force upon Dr. Pages, it is of no moment because the force used by Tapia upon Dr. Pages was non-deadly force and, under the relevant portion of section 776.012, Tapia need not establish that he was not engaged in unlawful activity....
...Pages hard to keep him from coming closer to his wife, Ms. Singer.” 7 Thus, because a determination was made that Tapia reasonably believed he had to act to defend against Pages’ imminent use of “unlawful force” upon Tapia’s wife, Tapia was justified in the use of non-deadly force under section
776.012, rendering unnecessary any further discussion of the alternative provisions or requirements of section
776.013(3)....
...y and that the credible testimony established that Tapia had no physical contact with Mrs. Pages. Although the magistrate concentrated on the immunity provisions of section
776.013, Tapia had raised entitlement to immunity under sections
776.013 and
776.012. Because there was competent substantial evidence to support a finding of immunity under section
776.012, we need not address whether, under section
776.013, Tapia's guilty plea and adjudication conclusively established, for immunity purposes, that he was engaged in unlawful activity.
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 2000 WL 1816602
...[2] "A person is justified in the use of 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 such other's imminent use of unlawful force." § 776.012, Fla....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 12499, 2009 WL 2602222
...In turn, the legislature broadly defined the term "criminal prosecution" to include "arresting, detaining in custody, and charging or prosecuting the defendant." [3] Id. Because Mr. Horn has already been arrested and charged with a criminal homicide, our focus is upon his pending prosecution. Section 776.012, titled "Use of force in defense of person," provides the limits of justifiable force in this case....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 2006 WL 929885
...doctrine" self-defense instruction at trial). Although statutory law allowed a person to use deadly force when necessary to prevent imminent harm to him or herself or to another person, or to prevent the imminent commission of a forcible felony, see section 776.012, Florida common law required a duty to retreat "to the wall" in most cases....
...cases, absent clear legislative intent favoring retroactive application. Id. at 499 (citations omitted). Here, it is clear that the statute attaches new legal consequences to events completed before the enactment of section
776.013 and amendment to section
776.012....
...Although procedural changes in criminal law may escape the reach of article X, section 9, see Lee v. State,
128 Fla. 319,
174 So. 589 (1937), a substantive change in a statute may be applied only prospectively. Here, the legislative enactment made a substantive change in section
776.012, eliminating any duty to retreat under certain enumerated circumstances, which include the circumstances in this case....
...Thus, it is not remedial in the sense that it may be applied retroactively to events occurring prior to its enactment. For these reasons, we grant the petition and quash the order of the trial court. Smiley is not entitled to jury instructions based upon the expanded right of self-defense contained in sections
776.012 and
776.013....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2005 WL 1162934
...ustified in the use of 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 such other's imminent use of unlawful force. § 776.012, Fla....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 2014 WL 1156296, 2014 Fla. App. LEXIS 4273
...The instructions clearly explained that the justifiable use of non-deadly force was a defense to the crime with which Appellant was charged and the instructions properly defined the term “non-deadly force.” The instructions then explained the elements of the defense, as provided in sections
776.012 and
776.013(3)....
...tack, Appellant was no longer in a place he was entitled to be and was engaged in unlawful activity (i.e., trespassing), so he was not entitled to the defense in section
776.013(3). Instead, Appellant’s claim of self-defense was governed solely by section
776.012, which authorizes “[a] person”— without the prerequisites in section
776.013(3) 9 — to use non-deadly force “when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself ... against the other’s imminent use of unlawful force.” The instructions given in this case correctly explained to the jury that, consistent with section
776.012, justifiable use of non-deadly force required proof of only two facts: (1) that Appellant reasonably believed that the use of force was necessary to defend himself against Perkins’ use of force, and (2) that Perkins’ use of force appeared to Appellant to be imminent....
...closing argument. Accordingly, the fact that there was a grammatical error in the portion of the instruction related to section
776.013(3) is harmless in this case because the record establishes that Appellant’s self-defense claim was governed by section
776.012, not section
776.013(3)....
...Accordingly, in this case, it was necessary and proper for the court to inform the jury that Appellant both did (if he was the found to be the initial aggressor) and did not (if Perkins was found to be the initial aggressor) have a duty to retreat. Compare §
776.041(2)(a), Fla. Stat. with §§
776.012,
776.013(3), Fla....
...3d DCA 1974) ("A conviction will not be reversed because a particular jury instruction has not been given where, on the whole, the charges as given are clear, comprehensive, and correct.”). . See Little v. State,
111 So.3d 214, 221 (Fla. 2d DCA 2013) (explaining that the requirements of sections
776.012 and
776.013(3) are not identical and that a person who does not meet the prerequisites in section
776.013(3)— not engaged in unlawful activity and attacked in any place outside the home where he or she has a right to be — would have to look to section
776.012 to determine whether the use of force was justified).
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 8640, 2010 WL 2382583
...obbing him, making him immune from prosecution under section
776.032 of the Florida Statutes. See §
776.032, Fla. Stat. (2008) (commonly referred to as the "Stand Your Ground" law and providing that a person who uses force as authorized in sections
776.012,
776.013, or
776.031, "is immune from criminal prosecution and civil action for use of such force"); §
776.012, Fla....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2000 WL 1021575
...Thus, the state correctly posits that Wallace would only be entitled to use deadly force if, under his delusions, he reasonably believed that the victims were about to inflict imminent bodily harm upon him. See Weiand v. State,
732 So.2d 1044 (Fla.1999); §
776.012, Fla....
CopyCited 5 times | Published | Florida 1st District Court of Appeal
...This standard jury instruction is not a totally correct statement of Florida law. It is based on section
776.051(1), Florida Statutes (1981). [1] In Invester *102 v. State,
398 So.2d 926 (Fla. 1st DCA 1981), rev. denied,
412 So.2d 470 (Fla. 1982), we held that section
776.051 must be read in pari materia with section
776.012, Florida Statutes, which justifies the use of force in certain circumstances....
...SMITH, Jr., C.J., and THOMPSON, J., concur. NOTES [1] Section
776.051(1), Florida Statutes (1981) states: A person is not justified in the use of force to resist an arrest by a law enforcement officer who is known, or reasonably appears, to be a law enforcement officer. [2] Section
776.012, Florida Statutes (1981) states: A person is justified in the use of force, except deadly force, against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2012 Fla. App. LEXIS 21415, 2012 WL 6166382
...The trial court did not err in concluding that petitioner did not establish an entitlement to self-defense immunity. Petitioner had the burden of proving his entitlement to self-defense immunity by a preponderance of the evidence. Peterson,
983 So.2d at 29 . Section
776.012, Florida Statutes, provides: Use of force in defense of person....
...The trial court correctly concluded that petitioner had not shown that he reasonably believed that the use of deadly force was necessary “to prevent imminent death or great bodily harm to himself ... or another or to prevent the imminent commission of a forcible felony.” § 776.012, Fla....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 1990 WL 41210
...Defendants acknowledge that pursuant to section
782.04, a person may be charged with felony murder if that person, while "engaged in the perpetration of, or in the attempt to perpetrate" cocaine trafficking, kills another human being. However, they contend that they are entitled to raise the defense of self-defense, §
776.012, Fla....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2013 WL 5354419, 2013 Fla. App. LEXIS 15243
...[A] person is justified in the use of deadly force and does not have a duty to retreat if: (1) He or she reasonably believes that 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[.] § 776.012, Fla....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 1994 WL 498397
...[The State Attorney argues] that the [phrase] "reasonably believes" as used in Florida Statute §
787.04(5) is not a new concept in the Florida criminal law. A number of Florida criminal statutes afford the defendant an affirmative defense based on his reasonable belief. Specifically §
776.012 Fla....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2007 WL 3034856
...felony at the time he was killed. See, e.g., §
784.045, Fla. Stat. (2003) (defining aggravated battery). However, whether Mr. Byers was committing aggravated battery at the time he was killed depends on whether his use of force was justifiable. See §
776.012, Fla....
CopyCited 4 times | Published | District Court, S.D. Florida | 2013 U.S. Dist. LEXIS 126951, 2013 WL 4714049
...Accordingly, Tavss’s use of a firearm would remain “operational” and not “discretionary,” and sovereign immunity would not apply. The City nonetheless argues that it is entitled to summary judgment on the basis of Florida’s justifiable-use-of-deadlyforee statute. *1377 Florida Statutes section 776.012 provides that “a person is justified in the use of deadly force” if “[h]e or she reasonably believes that 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.” Fla. Stat. § 776.012 (1). “A person who uses force as permitted in s. 776.012 ......
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2008 WL 724024
...guilty of criminal mischief, withheld adjudication, and placed him on probation. II. Analysis A. Self-Defense D.M.L. argues as a threshold matter that the trial court improperly excluded evidence on the basis that D.M.L. could not assert a defense of self-defense to the offense of criminal mischief. Section 776.012, Florida Statutes (2006), provides that "[a] person is justified in using force, except deadly force, against another when and to the extent that the *673 person reasonably believes that such conduct is necessary to defend himself or...
CopyCited 4 times | Published | Supreme Court of Florida | 41 Fla. L. Weekly Supp. 85, 2016 Fla. LEXIS 502, 2016 WL 916224
...the statute; courts need only give effect to the plain meaning of its terms. See State
v. Egan,
287 So. 2d 1, 4 (Fla. 1973).
In Florida, the laws concerning justifiable use of force are mostly codified in
Chapter 776 of the Florida Statutes.2 Section
776.012, “Use of force in defense of
person,” discusses the use of force, both deadly and non-deadly, in defense of
person:
A person is justified in using force, except deadly force, against
another when and to the e...
...Having occurred in 2010, the events in this case are governed by the 2010
Florida Statutes.
- 12 -
or another or to prevent the imminent commission of a forcible
felony; or
(2) Under those circumstances permitted pursuant to s.
776.013.
§
776.012, Fla....
...s a right to
be.
§
776.031 Fla. Stat. (2010) (emphasis supplied). In addition to providing a defense
to criminal charges, chapter 776 also provides immunities from criminal
prosecution and civil actions for conduct justified under sections
776.012,
776.013,
and
776.031....
...continues or resumes the use of force.
§
776.041, Fla. Stat. (2010) (emphasis supplied). The “preceding sections” include
those sections pertaining to defense of person, defense of others, the right to stand
one’s ground, and the associated immunities. See §§
776.012-.013,
776.031-.032,
- 14 -
Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2000 WL 31815
...Additionally, a "person is justified in the use of deadly force only if he or she reasonably believes that 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." § 776.012, Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2004 WL 2964907
...61, 74,
120 S.Ct. 1119,
146 L.Ed.2d 47 (2000), that "[a]lthough there might be reason to reconsider Doyle, we need not do so here." Despite this harbinger, Doyle appears to remain good law today. [3] State v. DiGuilio,
491 So.2d 1129, 1131 (Fla.1986). [4] See also §
776.012, Fla....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1996 WL 464147
...1st DCA 1990). See also Roberts v. State,
425 So.2d 70, 71 (Fla. 2d DCA 1982), review denied,
434 So.2d 888 (Fla.1983)("Depravity of mind means malice in the sense of ill will, hatred, spite or evil intent"). The use of force in defense of person is governed by section
776.012, Florida Statutes, which states: A person is justified in the use of force, except deadly force, against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1991 WL 43189
...In Diaz, supra at 980, wherein the defendant was the only witness to the killing, the court ruled: The defendant's direct testimony concerning the victim's threats and his menacing approach together with the defendant's assertion that he was in fear of his life made out a prima facie case of self defense under Section 776.012, Florida Statutes (1977)....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2008 WL 2468695
...assault or battery may have been fatal to any conviction based upon this charge. A person is justified in committing a battery when that person believes the battery is necessary to defend himself against another's imminent use of unlawful force. See § 776.012, Fla.Stat....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1999 WL 43521
...tatement given to law enforcement was self-defense. No evidence indicated that Feltz had attacked Adams with a weapon. To support his use of deadly force, Adams contended that Feltz was in the process of committing a forcible felony directed at him. Section 776.012, Florida Statutes (1993), defines self-defense as follows: 776.012 Use of force in defense of person.A person is justified in the use of force, except deadly force, against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force....
...The 1995 Legislature added aggravated stalking to the list of enumerated forcible felonies recited in section
776.08. We presume that Adams' contention that aggravated stalking was a forcible felony in 1993 (the year of the offense) for the purpose of section
776.012 is under the catch-all "other felony" language of section
776.08 as it existed in 1993.
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2014 WL 1696187, 2014 Fla. App. LEXIS 6260
...hearing to determine whether Alvarez was justified in using force against the plaintiff below, Derrick Roy Flemmings, under Florida’s Stand Your Ground Law, we grant the petition and remand for further proceedings consistent with this opinion. See § 776.012, Fla....
...1 For the following reasons, we find that principles of res judicata/collateral estop-pel do not apply, but nevertheless remand for an evidentiary hearing on Alvarez’ entitlement to immunity from the instant civil action. Res judicata/collateral estoppel do not apply Section
776.012 provides for justifiable use of force in defense of person: A person is justified in using 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. [[Image here]] §
776.012, Fla. Stat. (2014). Section
776.032 provides that a person who uses such justifiable force receives immunity for the use of that force: (1) A person who uses force as permitted in s.
776.012, s....
...Under these statutes, once the criminal circuit court made the legal determination that Alvarez’ use of force against Flemmings was justified, Alvarez was entitled to immunity from criminal prosecution for aggravated battery with a deadly weapon and the criminal charges were dismissed. See §§
776.012,
776.032(1), Fla....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2003 WL 1916699
...A motion for judgment of acquittal should not be granted unless "the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law." Lynch v. State,
293 So.2d 44, 45 (Fla.1974). Section
776.012, Florida Statutes (1997), permits the use of deadly force against another, "only if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself." Whether a person was...
CopyCited 2 times | Published | United States Bankruptcy Court, S.D. Florida.
...The Debtor answered the Plaintiffs' amended complaint in the State Action, asserting six affirmative defenses: (1) justifiable use of force, in the defense of himself, and the defense of others; (2) defense of himself and others, and constituted lawful force pursuant to Fla. Stat. § 776.012; (3) justifiable use of force necessary to prevent imminent commission of a forcible felony; (4) the damages were caused by the negligence and/or intentional acts of Mark Drewes; (5) the receipt of benefits from collateral sources entitle...
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2017 WL 4280598
...Furthermore, there is no duty to retreat when using non-deadly
force. See Hansen v. State,
898 So. 2d 201, 204 (Fla. 2d DCA 2005) (citing
Morris v. State,
715 So. 2d 1177, 1179 (Fla. 4th DCA 1998)). Appellant
correctly points out that the 2012 version of section
776.012 did not
require him to prove that he was not engaged in unlawful activity, but this
was not the section under which appellant’s counsel requested the
justifiable use of force defense....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal
...jury, over his timely objection, that he had a duty to retreat if the jury determined he was
engaged in unlawful activity while defending himself during a brawl. He claims that this
jury instruction deprived him of his sole defense, which was self-defense pursuant to
section 776.012(1), Florida Statutes (2012)....
...sel objected to the inclusion of
any jury instruction language suggesting that Eady had a duty to retreat if he was
engaged in an "unlawful activity." He asserted that he was proceeding under a self-
defense theory pursuant to the 2012 version of section 776.012(1), which had no such
language. Over defense counsel's timely objection, the trial court instructed the jury that
Eady had a duty to retreat if he was "engaged in an unlawful activity," a requirement
that did not exist in the 2012 version of section 776.012(1)....
...acquittal as to the aggravated battery count. Accordingly, the only charge presented to
the jury was for the attempted second-degree murder of Leavitt.
-3-
acting in self-defense and had no duty to retreat pursuant to the 2012 version of section
776.012(1).
II....
...2d DCA 2010) (quoting Worley v. State,
848 So. 2d 491, 492 (Fla. 5th DCA 2003)).
Under the 2012 version of Florida's Stand Your Ground Law,2 section
776.032(1) provides for immunity from criminal prosecution for any person who uses
force as permitted in section
776.012, section
776.013, or section
776.031. Here, Eady
raised his theory of self-defense under the 2012 version of section
776.012. Although
section
776.013 precludes immunity where a person engages in unlawful activity at the
time they use force, the version of section
776.012 in effect in 2012 did not. See Little
v. State,
111 So. 3d 214, 221-22 (Fla. 2d DCA 2013).
At the time of Eady's charged criminal conduct in 2012, section
776.012(1)
read, in relevant part, as follows:
2§§
776.032, .012, .013, Fla....
...(1) He or she reasonably believes that 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 . . . .
§ 776.012(1). Construing the identical text of section 776.012(1) set forth above, our
court has held that this version of section 776.012(1) did not impose a duty to retreat
upon a defendant engaged in unlawful activity....
...2d DCA 2016) (citing, inter alia, Little,
111 So. 3d at 220-22; Dorsey v.
State,
149 So. 3d 144, 147 (Fla. 4th DCA 2014)); cf. Miles v. State,
162 So. 3d 169,
171-72 (Fla. 5th DCA 2015) ("[U]nder the prior Stand Your Ground law, a defendant
could assert immunity under section
776.012 even if he or she was engaged in an
unlawful act at the time."); Garrett v. State,
148 So. 3d 466, 471 (Fla. 1st DCA 2014)
("The fact that [defendant] was a convicted felon in unlawful possession of a firearm did
not apply to the jury's consideration of whether [defendant] had a duty to retreat under
section
776.012(1)."); Hill v. State,
143 So. 3d 981, 985-86 (Fla. 4th DCA 2014) (en
banc) (holding that the application of section
776.012 is not limited to persons not
engaged in unlawful activity); Pages v. Seliman-Tapia,
134 So. 3d 536, 539 (Fla. 3d
DCA 2014) (holding that defendant need not establish that he was not engaged in
unlawful activity under section
776.012). Indeed, our court explained that an individual
may assert self-defense by the use of deadly force under this version of section
-5-
776.012(1) with no duty to retreat, even if that defendant was engaged in unlawful
activity while standing his ground....
...immunity and therefore lacked continuing jurisdiction to prosecute him.
111 So. 3d at
216. The defendant, Aaron Little, shot an acquaintance in self-defense. Id. at 217.
Little moved for pretrial immunity and argued that his use of deadly force in self-defense
was justified under section
776.012(1)....
...On appeal to our court, the State argued that Little was not
entitled to immunity because he was engaged in unlawful activity under section
776.013(3). Id. at 218-19. Our court disagreed and held (1) that a person may pursue
immunity if they qualify "under either section
776.012(1) or
776.013(3)"; (2) that section
776.012(1) does not preclude immunity where the person who uses force engaged in
unlawful activity; and (3) that any person who did not meet the requirements of section
776.013(3) could look to section
776.012(1) as "another means of obtaining immunity."
See id. at 219-22.
Three years later, our court applied the holding of Little to the identical
versions of section
776.012(1) and section
776.013(3) that are at operation here. In
3In2014, the legislature amended section
776.012 to conform with section
776.013 so as to require the person using force or threatening to use force not be
engaged in unlawful activity....
...Our court held that an appellate public
defender gave ineffective assistance to Andujar-Ruiz where he failed to argue on direct
appeal that the trial court's instruction was fundamental error. Id. at 805-06. We
reasoned that because Andujar-Ruiz wished to base his theory of self-defense solely on
section 776.012(1), "[t]he trial court's instruction misled the jury by informing it that it
was required to find that Andujar-Ruiz retreated before resorting to force, contrary to the
plain language of section 776.012(1)." Id....
...(citing
Williams v. State,
982 So. 2d 1190, 1194 (Fla. 4th DCA 2008)).
Our holdings in Little and Andujar-Ruiz dictate the outcome of this appeal.
Eady's counsel made it clear that Eady wished for his theory of self-defense to be
rooted in section
776.012(1) and objected to the inclusion of any language suggesting
that Eady had a duty to retreat were the jury to determine he was engaged in unlawful
activity....
...Although defense counsel alerted the trial court of our decision in Little, the trial
court nevertheless instructed the jury that Eady had a duty to retreat if he was engaged
in unlawful activity. The plain language of the applicable 2012 version of section
776.012(1) required no such thing....
...ngaged in unlawful
activity, the trial court impermissibly negated Eady's sole defense at trial—self-defense.
Although the trial court's jury instruction may have been proper had Eady's conduct
occurred after the legislature's 2014 amendment of section 776.012, his conduct in fact
occurred prior to that amendment....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2013 WL 5849486, 2013 Fla. App. LEXIS 17324
...y denied. A person is justified in using deadly force when he or she reasonably believes such force is necessary to prevent imminent death or great bodily harm to him or herself or another, or to prevent the imminent commission of a forcible felony. § 776.012, Fla....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2011 Fla. App. LEXIS 3158
...State,
948 So.2d 635 (Fla.2006), but we view the evidence, and all reasonable inferences from the evidence, in a light most favorable to the State (as the prevailing party), to determine whether there is substantial, competent evidence to support the factfinder’s determination. Banks,
732 So.2d at 1067 . Section
776.012, Florida Statutes (2010), provides: A person is justified in using 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....
...State,
924 So.2d 80 (Fla. 5th DCA 2006). The defense of others defense permits the use of force only “to the extent that .the person reasonably believes that such conduct is necessary to defend ... another against the other’s imminent use of unlawful force.” §
776.012, Fla....
CopyCited 2 times | Published | District Court of Appeal of Florida
from harm. See Smith, 76 So. 3d at 383. Section
776.012 governs the justifiable use of force in defense
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2015 Fla. App. LEXIS 9277, 2015 WL 3777705
...eath or great bodily harm, was justifiable. (Emphasis added). See Fla. Std. Jury Instr. (Crim.) 3.6(f). Appellant argues the instruction that she had a duty to retreat if she was engaged in an unlawful activity was a misstatement of the law, because section 776.012(1), Florida Statutes (2009), stated a defendant has no duty to retreat regardless of whether she was engaged in unlawful activity....
...She as *260 serts this conflict negated her only theory of defense, self-defense, and thus the error was fundamental. As will be discussed below: (A) the instruction was a misstatement of the law; however, (B) the instruction was not fundamental error under the facts of this case. A. Duty to Retreat — §§
776.012(1),
776.013(3), and 776.Oil, Fla. Stat. (2009) Appellant argues the portion of the instruction that stated she had no duty to retreat if she was “not engaged in an unlawful activity” was a misstatement of the law because section
776.012, Florida Statutes (2009), permitted her to stand her ground regardless of whether she was engaged in unlawful activity....
...From October 2005 until June 2014, two different provisions of the “Stand Your Ground” law, codified in chapter 776, permitted a defendant to use deadly force without retreating, only one of which required that the defendant not be engaged in unlawful activity. Section 776.012 stated: [A] person is justified in the use of deadly force and does not have a duty to retreat if: (1) He or she reasonably believes that 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. § 776.012, Fla....
...Under section
776.013, a person not engaged in unlawful activity was entitled to stand his or her ground if that person “reasonably believed it is necessary to prevent death or great bodily harm.” §
776.013(3), Fla. Stat. (2009). However, under section
776.012, there was no requirement that the defendant not have been engaged in unlawful activity, but the defendant must prove the deadly force was necessary to prevent “imminent death or great bodily harm.” §
776.012(1), Fla....
...nger other than the use of force,” or “withdraws from physical contact with the assailant” and “indicates clearly ... that he or she desires to withdraw.” §
776.041(2)(a)-(b), Fla. Stat. (2009). *261 Here, instructions reflecting sections
776.012(1),
776.013(3), and
776.041(2) were read to the jury....
...“some evidence to support [a] claim of justifiable use of deadly force to prevent imminent death or great bodily harm or the imminent commission of a forcible felony” the defendant is “entitled to request and receive an instruction reflecting section
776.012(1).” “Therefore, it was error for the trial court to instruct the jury regarding Garrett’s unlawful conduct” by instructing on section
776.013(3) and instructing that possession of a firearm by a convicted felon was unlawful. Id. If a defendant’s claim of self-defense was based solely on the prior version of section
776.012(1), then it is “an incorrect statement of the then-existing law” to instruct that the defendant had a duty to retreat if engaged in unlawful activity pursuant to section
776.013....
...judicial to the defendant.’ ” Floyd v. State,
151 So.3d 452, 454 (Fla. 1st DCA 2014), review granted, SC14-2162 (Fla.2014) (quoting Carter v. State,
469 So.2d 194, 196 (Fla. 2d DCA 1985)). The Garrett court found the error in instructing on both
776.012 and
776.013 was not fundamental in that case because “the jury was not precluded from considering Garrett’s affirmative defense, regardless of his unlawful activity.”
148 So.3d at 471 ....
...that the challenged instruction constituted fundamental error.” Id. The reasoning of Garrett is equally applicable here. Appellant would have been entitled to request an instruction that she had no duty to retreat if the danger was imminent under section
776.012(1), and it was error to instruct that she had a duty to retreat if engaged in unlawful activity pursuant to section
776.013(3)....
...at a defendant cannot be guilty of manslaughter by committing “a merely negligent act,” or if the killing was justifiable or excusable homicide. Fla. Std. Jury Instr. (Crim.) 7.7. . Both sections were amended in 2014, resolving this discrepancy. Section
776.012(2), Florida Statutes (2014) now states a defendant may stand his or her ground only if “not engaged in criminal activity and is in a place where he or she has a right to be.” Section
776.013(3), Florida Statutes (2014) now pertain...
CopyCited 2 times | Published | Supreme Court of Florida | 40 Fla. L. Weekly Supp. 411, 2015 WL 4112414, 2015 Fla. LEXIS 1470
...Bretherick filed a motion to dismiss under Florida Rule of Criminal
Procedure 3.190(b), claiming immunity from prosecution under section
776.032,
Florida Statutes, Florida’s “Stand Your Ground” law. The Stand Your Ground law
provides that when a person uses force as permitted by sections
776.012,
776.013,
or
776.031, Florida Statutes (2011), the person is entitled to immunity from
criminal prosecution....
...Section
776.032 & This Court’s Decision in Dennis
Florida’s Stand Your Ground law provides in pertinent part as follows:
Immunity from criminal prosecution and civil action for
justifiable use of force.—
(1) A person who uses force as permitted in s.
776.012, s.
776.013, or s.
776.031[4] is justified in using such force and is
immune from criminal prosecution and civil action for the use of such
force, unless the person against whom force was used is a law
4. Section
776.012, Florida Statutes (2011), provides:
A person is justified in using force, except deadly force, against
another when and to the extent that the person reasonably believes
that such conduct is necessary to defe...
...ity from criminal
prosecution, but instead provided immunity only to those whose use of force was
justified, as specified by statute. See §
776.032, Fla. Stat. (providing that the use
of force is justified only when used as permitted by sections
776.012,
776.013, or
776.031)....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 1554, 2015 WL 477872
...eals the denial of his dispositive motion to dismiss, which asserted “Stand Your Ground” immunity under section
776.032, Florida Statutes (2010). Section
776.032 provides immunity from prosecution under three separate statutory defenses-sections
776.012,
776.013, and
776.031....
...m prosecution under section .
776.013(3) because he was engaged in unlawful activity (i.e., carrying a concealed firearm). Miles argues on appeal that the “unlawful activity” prohibition found in section
776.013(3) does not negate immunity under section
776.012....
...context of jury instructions at trial. The Second, Third, and Fourth District Courts of Appeal have held that although a defendant engaged in unlawful activity could not claim immunity under section
776.013(3), he or she could assert immunity under section
776.012 prior'to 2014 1 because that statute had no “unlawful activity” exception. See Hill v. State,
143 So.3d 981, 986 (Fla. 4th DCA 2014) (en banc); Pages v. Seliman-Tapia,
134 So.3d 536, 539 (Fla. 3d DCA 2014) (affirming dismissal of civil case based upon section
776.012 immunity); Little v. State,
111 So.3d 214, 222 (Fla. 2d DCA 2013) (reversing denial of motion to dismiss based on section
776.012 immunity, regardless of alleged unlawful activity). The First District has also stated as much in obiter dictum. Brown v. State,
135 So.3d 1160, 1161-62 (Fla. 1st DCA 2014) (noting that statutory immunity under section
776.032(1), based on sections
776.012, “is potentially available even to a person engaged in an unlawful activity at the time”); see also State v. Wonder, 39 Fla. L. Weekly D1695 (Fla. 4th DCA Aug.13, 2014) (noting in dictum that sections
776.012 and
776.013 provide alternate forms of immunity; since defendant did not seek immunity under section
776.013, trial court erroneously considered whether defendant was engaged in unlawful activity at time). 2 Consistent with our sister courts, we also conclude that under the prior Stand Your Ground law, a defendant could assert immunity under section
776.012 even if he or she was engaged in an unlawful act at *172 the time....
...Miles may assert the affirmative defense of necessity if applicable. REVERSED; REMANDED WITH INSTRUCTIONS. TORPY, C.J., and SWANSON, R„ Associate Judge, concur. . The Florida Legislature has rectified the problem presented in this case by amending section 776.012, effective June 20, 2014, to grant immunity only to a person “not engaged in criminal activity.” § 776.012, Fla....
...In the related context of asserting the Stand Your Ground defense at trial, additional cases have found error in instructing the jury that a defendant had a duty to retreat before defending himself if he was engaged in unlawful activity at the time because the unlawful activity exception did not apply to section 776.012....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2003 WL 22956113
...Both Florida statutory and common law permit the use of deadly force in self-defense if a person reasonably believes that such force is necessary to prevent imminent death or great bodily harm. Weiand v. State,
732 So.2d 1044, 1049 (Fla. 1999). Specifically, section
776.012, Florida Statutes (1995), provides that "a person......
CopyCited 2 times | Published | Florida 1st District Court of Appeal
...1st DCA 2013).
Florida law justifies the use of deadly force if someone
“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.” § 776.012(2), Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2007 WL 3170281
...At closing arguments, the defense argued that the defendant's actions were justified. A person is justified in using non-deadly force if (a) he or she reasonably believes that such force is necessary to (b) prevent imminent death or great bodily harm. § 776.012, Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...to appeal
the trial court’s denial of her motion to dismiss. Appellant’s
motion to dismiss was based on the statutory immunity from
prosecution provided by section
776.032, Florida Statutes (2017),
where the use of force is justified pursuant to section
776.012,
Florida Statutes.
At the motion hearing, the State conceded that Appellant’s
motion established a prima facie case that Appellant’s use of
force was justified and that the burden of proof was thus on the
State to overcome that prima facie case with clear and convincing
evidence to the contrary....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2016 Fla. App. LEXIS 17021
...He argues that the instructions given were inconsistent with Florida’s Stand Your Ground law, 2 citing Little v. State,
111 So.3d 214 (Fla. 2d DCA 2013), in which this court held that a defendant engaged in unlawful activity is not precluded from seeking immunity under section
776.012, Florida Statutes (2011), 3 even though the same unlawful activity would prevent him *806 or her from obtaining the immunity under section
776.013....
...The defendant drew his firearm, closed his eyes, and fired several times, killing his attacker. The defendant was charged with second-degree murder with a firearm. The defendant in Little filed a motion to dismiss arguing that he was entitled to immunity under the Stand Your Ground law as provided for in sections
776.032 and
776.012(1). Section
776.032(1) provides that persons using force as permitted under sections
776.012,
776.013, or
776.031 are “justified in using such force and [are] immune from criminal prosecution and civil action for the use of such force.” The State responded, arguing in part that the defendant was not entitled to immunity because he was engaged in unlawful activity, citing section
776.013(3)....
...(Emphasis added.) Although section
776.013(3) requires that a defendant not be engaged in unlawful activity, as we explained in Little , a defendant’s felonious possession of a firearm does not preclude such a defendant from raising a defense under section
776.012(1), which provides: A person is justified in using 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....
...bly believes that 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.... Here, because Andujar-Ruiz was entitled to raise a defense under section 776.012(1), the trial court’s instruction that he had a duty to retreat if he was engaged in unlawful activity effectively deprived Andujar-Ruiz of his sole defense and constituted fundamental error....
...Now, a felon in possession of a firearm constitutes unlawful activity. Dorsey,
149 So.3d at 145 (emphasis omitted). The Fourth District held that this instruction constituted fundamental error because the defendant did not have a duty to retreat under section
776.012(1) and it “effectively eliminated Defendant’s sole affirmative defense.” Id....
...4th DCA 2008) (alterations in original) (quoting Carter v. State,
469 So.2d 194, 196 (Fla. 2d DCA 1985)). The trial court’s instruction misled the jury by informing it that it was required to find that Andujar-Ruiz retreated before resorting to force, contrary to the plain language of section
776.012(1)....
CopyCited 1 times | Published | Supreme Court of Florida | 2016 WL 2586287
...language in section
776.013(3), Florida Statutes, pertaining to the circumstances
under which a defendant does not have a duty to retreat before using force. The
proposal submitted by the Committee, while addressing a defendant’s duty to
retreat under sections
776.012(2) and
776.031(2), Florida Statutes, does not
address a defendant’s duty to retreat under section
776.013(3), Florida Statutes.
We are concerned that instruction 3.6(f) as proposed by the Committee does not
fully address the circumstances under which a defendant does not have a duty to
retreat before using force....
...he applicable felony that defendant
alleges victim attempted to commit, but omit any reference to burden of proof. See
Montijo v. State,
61 So. 3d 424 (Fla. 5th DCA 2011).
-6-
Give if applicable. §§
776.012(2),
776.031(2), Fla....
...make an arrest, then a
person is justified in the [use] [or] [threatened use] of reasonable force to
defend [himself] [herself] (or another), but only to the extent [he] [she]
reasonably believes such [force] [or] [threat of force] is necessary. See
§
776.012, Fla. Stat.; Ivester v. State,
398 So. 2d 926 (Fla. 1stst DCA 1981);
Jackson v. State,
463 So. 2d 372 (Fla. 5thth DCA 1985).
In some instances, the instructions applicable to §§
776.012,
776.031, or
776.041, Fla....
...(name[s] of relevant crime[s]) if the
actions of (defendant) constituted the justifiable use of non-deadly force.
Definition.
“Non-deadly” force means force not likely to cause death or great bodily
harm.
In defense of person. § 776.012(1), Fla....
...However, if an officer uses excessive force to make an arrest, then a
person is justified in the [use] [or] [threatened use] of reasonable force to
defend [himself] [herself] [another], but only to the extent [he] [she]
reasonably believes such force is necessary. See §
776.012, Fla. Stat.; Ivester v.
State,
398 So. 2d 926 (Fla. 1st DCA 1981); Jackson v. State,
463 So. 2d 372 (Fla.
5th DCA 1985).
In some instances, the instructions applicable to §§
776.012,
776.031, or
776.041, Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2014 WL 1921734, 2014 Fla. App. LEXIS 7171
...ts and trial strategies of counsel.’” Floyd v. State, -So.3d-,-,
2014 WL 30573 , 39 Fla. L. Weekly D76 , D77 (Fla. 1st DCA Jan. 3, 2014) (quoting Smith v. State,
76 So.3d 379, 383 (Fla. 1st DCA 2011)). Two statutory provisions are relevant here. Section
776.012, Florida Statutes, entitled “Use of force in defense of person,” provides: A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is...
...ably believes that 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; or (2) Under those circumstances permitted pursuant to s.
776.013. §
776.012, Fla....
...t has the right to use deadly force in self-defense without the duty to retreat, the instruction effectively limits the right to persons “not engaged in unlawful activity.” He argues that, although section
776.013(3) includes such a restriction, section
776.012 does not; rather, under sub *1133 section (1), any person, who reasonably believes deadly force is necessary to prevent imminent death or great bodily harm, or an imminent forcible felony, may use such force without retreat, and without regard to whether the person is engaged in unlawful activity....
...Hence, fundamental error occurred, requiring reversal of his conviction. We have found two decisions from sister courts that, although they do not consider the justifiable use of deadly force jury instruction, discuss the scope of the defense under sections
776.012(1) and
776.012(3), and, in some measure, tend to support Hardison’s argument. First, the Second District, in Little v. State,
111 So.3d 214 (Fla. 2d DCA 2013), considered whether a person may claim justifiable use of deadly force under section
776.012(1), and therefore, immunity from criminal prosecution under section
776.032(1), 1 even though he or she was engaged in unlawful activity at the time....
...on
776.013(3) applies when a person is (1) not engaged in an unlawful activity and (2) attacked in any place outside the “castle” as long as (3) he or she has a right to be there. A person who does not meet these three requirements would look to section
776.012(1) to determine whether the use of deadly force was justified.... The requirements under sections
776.012(1) and
776.013(3) are not identical. A person proceeding under section
776.013(3) would have to prove that he or she reasonably believed the use of deadly force was “necessary ... to prevent death or great bodily harm ... or to prevent the commission of a forcible felony.” Under section
776.012(1), a person would have to prove that he or she reasonably believed the use of deadly force was “necessary to prevent imminent death or great bodily harm ......
...nce. Id. at 222-23 . Next, in State v. Wonder,
128 So.3d 867 (Fla. 4th DCA 2013), which also dealt with stand-your-ground immunity from prosecution, the State challenged the trial court’s decision to grant the appellant’s motion to dismiss under section
776.012(1), arguing that the court erroneously concluded the appellant was not engaged in unlawful activity. Concurring with the analysis in Little , the Fourth District concluded the matter of unlawful activity was irrelevant in any event, because the appellant sought immunity only under section
776.012(1), not section
776.013, and “[t]he exception for a defendant’s engagement in ‘unlawful activity’ does not exist under section
776.012.” Wonder,
128 So.3d at 869 ....
...tified. However, we make no such assertion today, and we decidedly do not hold that the standard instruction is fundamentally flawed. We do hold, however, that even if Hardison is correct that the portion of the standard instruction corresponding to section 776.012(1) erroneously omits the “no duty to retreat” statutory language, such omission did not result in fundamental error in his case....
...For these reasons, we conclude no fundamental error occurred, and, we AFFIRM Hardison’s conviction and sentence. ROBERTS and WETHERELL, JJ„ concur. .776.032 Immunity from criminal prosecution and civil action for justifiable use of force.— (1) A person who uses force as permitted in s. 776.012, s....
...ody, and charging or prosecuting the defendant. [[Image here]] §
776.032(1), Fla. Stat. (2010). . The Second District found the trial erred in ruling that the appellant was not entitled to stand-your-ground immunity under circumstances permitted in section
776.012(1) because appellant had re-engaged his assailant after retreating to safety. Little,
111 So.3d at 216-18 . The State urged affirmance, arguing that the appellant was not entitled to protection under section
776.012(1) because he was engaged in unlawful activity — felon in possession of a firearm — at the time....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2011 WL 804031
...State,
948 So.2d 635 (Fla.2006), but we view the evidence, and all reasonable inferences from the evidence, in a light most favorable to the State (as the prevailing party), to determine whether there is substantial, competent evidence to support the factfinder's determination. Banks,
732 So.2d at 1067. Section
776.012, Florida Statutes (2010), provides: A person is justified in using 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....
...State,
924 So.2d 80 (Fla. 5th DCA 2006). The defense of others defense permits the use of force only " to the extent that the person reasonably believes that such conduct is necessary to defend . . . another against the other's imminent use of unlawful force." §
776.012, Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...Claim one argued defense counsel
was ineffective for failing to object to the jury instructions.
Embedded within claim one were several sub-claims wherein the
appellant argued counsel was ineffective for: convincing him not
to pursue a Stand Your Ground defense under section
776.012,
Florida Statutes (2012); failing to move to sever the possession of
a firearm by a convicted felon charge; and failing to file a pretrial
motion for Stand Your Ground Immunity under section
776.032,
Florida Statutes (2012)....
...he record.
McLin v. State,
827 So. 2d 948, 954 (Fla. 2002). See also Fla. R.
App. P. 9.141(b)(2)(D).
Within claim one, the appellant raised a facially sufficient
sub-claim that trial counsel should have pursued Stand Your
Ground immunity under section
776.012....
...as ineffective for failing
to argue that fundamental error occurred when the trial court
instructed the jury that the defendant had a duty to retreat if he
was engaged in unlawful activity, which instruction deprived the
appellant of a defense under section
776.012, Florida Statutes
(2011)). With regard to the prejudice prong, the appellant asserted
that had counsel understood the distinction between section
776.013 and
776.012 and sought immunity from prosecution under
section
776.012, the outcome would have been different....
...4th DCA 2012) (holding
a convicted felon in possession of a firearm was engaged in
unlawful activity under section
776.013 and not entitled to Stand
Your Ground immunity) with Little v. State,
111 So. 3d 214 (Fla.
2d DCA [April 10,] 2013) (certifying a conflict with Hill and holding
a defense under section
776.012 did not preclude Stand Your
Ground immunity).
The postconviction court did not address the appellant’s sub-
claims nor did it attach portions of the record to conclusively refute
the claims; therefore, Issue II should be reversed and remanded
for further proceedings....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2008 Fla. App. LEXIS 3868
...guilty of criminal mischief, withheld adjudication, and placed him on probation. II. Analysis A. Self-Defense D.M.L. argues as a threshold matter that the trial court improperly excluded evidence on the basis that D.M.L. could not assert a defense of self-defense to the offense of criminal mischief. Section 776.012, Florida Statutes (2006), provides that “[a] person is justified in using force, except deadly force, against another when and to the extent that the *673 person reasonably believes that such conduct is necessary to defend himself o...
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2016 WL 3125471, 2016 Fla. App. LEXIS 8475
...he was not separately charged with burglary, the forcible-felony exception did not apply.
We conclude that the exception did apply under the facts of this case, such that the
postconviction court's order must be affirmed.
Cook relies on section 776.012(1), Florida Statutes (2010), which provides
that
[a] person is justified in using force, except deadly force,
against another when and to the extent that the person
reasonably believes that such conduct is necessary to
defend himself ....
...1976) (holding that when defendant was charged with
premeditated murder, the trial judge's instruction on felony murder "was warranted by
the evidence" (quoting Larry v. State,
104 So. 2d 352, 354 (Fla. 1958))).
We conclude that section
776.041(1)—providing that self-defense as
defined in section
776.012 is unavailable to someone who "is attempting to commit,
committing, or escaping after the commission of, a forcible felony"—is satisfied in
Cook's case because the record reflects that there was sufficient evidence to allow the
c...
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2014 WL 3434445, 2014 Fla. App. LEXIS 10884
...Here, the defendant used the very instrumentality that he was
not lawfully allowed to possess to injure his alleged assailant.
Id. (emphasis added).
Hill v. State
On remand, the defendant again moved to dismiss, but this time cited
section
776.012(1) as the basis for claiming justifiable use of deadly force
and seeking immunity.1 Section
776.012(1) provides that a person
attacked is justified in using deadly force to defend themselves and has no
duty to retreat if “[h]e or she reasonably believes that such force is
necessary to prevent imminent death or great bodily harm to himself or
herself.” Unlike section
776.013, section
776.012(1) does not mention that
the protections of the statute are unavailable to a person engaged in an
unlawful activity....
...3d at 435. Hill now seeks review of the trial
court’s denial of this second motion to dismiss. Because we now clarify
1The motion to dismiss that was originally granted cited only section
776.013(3),
Florida Statutes (2009), and did not refer to section
776.012(1).
3
that the holding in State v....
...Justifiable use of force is governed by the provisions of Chapter 776,
Florida Statutes (2009). Chapter 776 was significantly revamped in 2005
and, since then, has been generally referred to as the “Stand Your Ground”
law. Ch. 2005-27, §§ 1–4, at 200–02, Laws of Fla. Section 776.012,
Florida Statutes (2009), sets out when the use of force, including deadly
force, in defense of person is permissible and provides:
776.012....
...(emphasis added). The 2005 Stand Your Ground amendments, which are
at the center of this controversy, added the italicized language above to
this section. Ch. 2005–27, Laws of Fla. The addition of the words “and
does not have a duty to retreat” to section
776.012 had the effect of
abrogating any common law duty to retreat before using deadly force
outside the home under the circumstances indicated therein.
The Stand Your Ground amendments also created new section
776.013, Florida Statutes...
...death or great bodily harm to himself or herself or another or
to prevent the commission of a forcible felony.
§
776.013(3), Fla. Stat. (2009) (emphasis added). The parameters for
permissible use of force in this section are very similar to those in section
776.012(1), and both do away with the duty to retreat altogether in similar,
if not identical, circumstances.
Section
776.032, perhaps the heart of the Stand Your Ground
amendments, provides immunity from criminal prosecution and civil
action when the use of force is permissible under section
776.012 (defense
of person), section
776.013 (home protection or where person is standing
in a place they have the right to be), and section
776.031 (defense of
others)....
...2d DCA 2013) (holding that a person engaged in an
unlawful activity, such as possession of an illegal firearm by a felon, would
not be entitled to claim immunity under section
776.032(1) based on the
use of force as permitted in section
776.013(3)).
On the other hand, Hill’s present motion for immunity travels under
section
776.012(1) (use of force in defense of person), which contains no
language precluding the justifiable use of deadly force where the person
claiming self-defense is engaged in an unlawful activity. And, section
776.032(1) expressly extends immunity from prosecution to those who use
5
defensive force as permitted by section
776.012....
...4th DCA 2013), this court has already expressed agreement with the
Second District’s extensive legal analysis in Little v. State, concluding that
the plain language of
776.032 can be understood as granting immunity to
a person who qualifies under either
776.012(1) or
776.013(3) and that the
“unlawful activity” exception does not exist under section
776.012(1).
Thus, we recede from our statement in Hill that a felon in possession of a
firearm cannot claim immunity “under the Stand Your Ground law”
because the statement unintentionally went beyond the statutory
provision at hand—section
776.013(3).2
The interplay of section
776.012 and section
776.013(3)
Section
776.012 provides that a person is justified in using force,
including deadly force, and has no duty to retreat if he or she reasonably
believes that 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.” §
776.012(1)....
...r another
or to prevent the commission of a forcible felony.” The two sections appear
to overlap to the extent that anyone claiming self-defense under the
language of section
776.013(3) could also reasonably claim the defense
under the language of section
776.012(1) as there appears to be little
difference between a reasonable belief that the defensive force is necessary
“to prevent imminent death or great bodily harm” (section
776.012(1)
(emphasis added)), and a reasonable belief that the force is necessary to
“prevent death or great bodily harm” (section
776.013(3))....
...This opinion should eliminate any perceived conflict between
our courts’ positions on this issue.
6
There is no clear indication anywhere in the chapter that the right to
seek immunity from prosecution under section
776.012 is limited to those
not engaged in unlawful activity. Had this been the actual intent, then the
legislature could have easily accomplished this by including a simple
statement to this effect in section
776.032 or in section
776.012. We agree
with Judge Northcutt that any ambiguity created by contradictory
language in sections
776.012(1) and
776.013(3) requires that these
provisions of the criminal code be strictly construed most favorably to the
accused. Little,
111 So. 3d at 223 (Northcutt, J., concurring) (citing §
775.021(1), Fla. Stat. (2009)).
We note that section
776.012 was recently amended and section
776.012(2) now reads in part that “[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.” (emphasis added). See
Ch. 2014-195, § 3, 2014 Fla. Sess. Law Serv. (West) (to be codified at §
776.012, Fla....
...In the instant case, however, the existing
statutory language was clear, and there was no doubt and no conflict in
the case law as all of the reported cases which directly addressed the issue
reached the same conclusion as to the correct interpretation of Florida
Statutes section
776.012. See Little; Wonder.
Conclusion
In summary, Hill is not precluded from claiming justifiable use of force
under section
776.012(1), or from seeking immunity from prosecution
pursuant to section
776.032....
...case, namely section
776.013(3).3 We quash the trial court’s order which
denied Hill’s second motion to dismiss and remand for further proceedings
consistent with this opinion. On remand, the trial court shall determine
whether Hill was justified in using deadly force under section
776.012(1),
and, therefore, entitled to immunity from prosecution pursuant to section
776.032.
Petition granted.
DAMOORGIAN, C.J., WARNER, GROSS, TAYLOR, MAY, CIKLIN, GERBER, LEVINE,
CONNER, FORST and KLINGENSMITH, JJ., concur....
...3 We acknowledge that we adhered to the holding of Hill in Bragdon v. State,
123
So. 3d 654 (Fla. 4th DCA 2013) (certifying conflict with Little), petition for review
granted, No. SC13-2083 (Fla. July 2, 2014). To the extent that the petitioner
there may have relied on section
776.012 instead of section
776.013(3), Bragdon
may need to be remanded for further proceedings.
8
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2009 WL 18679
...The trial judge sustained the State's objection that this evidence would be irrelevant. The Florida Evidence Code defines relevant evidence as "evidence tending to prove or disprove a material fact." §
90.401, Fla. Stat. (2007). It also provides that "all relevant evidence is admissible." §
90.402, Fla. Stat. (2007). Section
776.012 authorizes the use of non-deadly force against another when the defendant "reasonably believes that such conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force." §
776.012, Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 486, 2009 WL 160310
...However, a person is justified in the use of deadly force and does not have a duty to retreat if: (1) He or she reasonably believes that 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[J § 776.012, Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2013 WL 238168, 2013 Fla. App. LEXIS 931
...According to petitioner, this fact triggered a statutory presumption under section
776.013(l)(a), Florida Statutes (2012), that his fear was reasonable, thus allowing him to use deadly force (shooting towards the other vehicle) in defense of himself. See §
776.012(2), Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2008 WL 34808
...Wilson was convicted by the jury, who did not hear his evidence of the history between him and the youths. We reverse for a new trial. A person may use deadly force in self defense when one reasonably believes that deadly force is necessary to prevent great bodily harm. See § 776.012, Fla....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2008 WL 314027
...Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant. Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee. *663 Before GERSTEN, C.J., and COPE, and RAMIREZ, JJ. PER CURIAM. Affirmed. §
776.012, §
784.03, Fla....
CopyCited 1 times | Published | District Court, M.D. Florida
...See id. at 620-22 . With these errors corrected, the case is now back with instruction to re-examine the sufficiency of Plaintiff's Complaint applying the "actual probable cause" standard in light of Florida's "Stand Your Ground" law, Florida Statutes §§
776.012 and
776.032....
..., [that] he or she lacks probable cause to arrest, even when the facts and circumstances establish that the person meets all elements of the offense." Id. (emphasis added). To those considerations, Florida's Stand Your Ground law, Florida Statutes §§
776.012 and
776.032, adds another layer to the probable cause analysis. Under Florida's Stand Your Ground law, "[a] person is justified in using ... deadly force if he or she reasonably believes that using ... such force is necessary to prevent imminent death or great bodily harm to himself." Fla. Stat. §
776.012 (2)....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2007 WL 4462985
...It is contained within Florida Standard Jury Instruction (Crim.) 3.6(f) titled "Justifiable Use of Deadly Force." Its statutory point of origin is section
776.041, Florida Statutes (2003). Titled "Use of Force by Aggressor," this statutory provision removes the defense of the justifiable use of force as codified by section
776.012, from a person who acts in one of two ways: first, the person attempts to commit, is committing, or is escaping after the commission of a forcible felony; or, alternatively, the actor provokes the use of force against himself....
CopyCited 1 times | Published | Supreme Court of Florida
...HIMSELF OR HERSELF OR ANOTHER OR TO PREVENT THE
IMMINENT COMMISSION OF A FORCIBLE FELONY, IS
LIMITED TO INVOKING A DEFENSE UNDER SECTION
776.05(1), OR IS ALSO PERMITTED TO SEEK IMMUNITY
FROM CRIMINAL PROSECUTION UNDER SECTIONS
776.012(1) AND
776.032(1), FLORIDA STATUTES (2013), MORE
COMMONLY KNOWN AS FLORIDA’S “STAND YOUR
GROUND” LAW.
Peraza, 226 So....
...and resolved all
factual disputes consistently with Deputy Peraza’s self-defense theory.
After being indicted for manslaughter with a firearm, Deputy Peraza moved
to dismiss the indictment, citing immunity from prosecution under sections
776.012(1) and
776.032(1), Florida Statutes (2013), commonly known as Florida’s
“Stand Your Ground” law, and under section
776.05, Florida Statutes (2013).
After the evidentiary hearing, the judge made the findings set forth above and
grante...
...This Court is “without power to construe an unambiguous statute in a way
which would extend, modify, or limit, its express terms or its reasonable and
obvious implications.” Id. (emphasis omitted) (quoting Am. Bankers Life
Assurance Co. of Fla. v. Williams,
212 So. 2d 777, 778 (Fla. 1st DCA 1968)).
Section
776.012, part of the Stand Your Ground law, provides in pertinent
part that
a person is justified in the use of deadly force and does not have a
duty to retreat if:
(1) He or she reasonably believes that such force is necessary to
prevent imminent death or great bodily harm to himself or herself or
another . . . .
§
776.012(2), Fla....
...Stat. (2013). Section
776.032, titled “Immunity from criminal
prosecution and civil action for justifiable use of force,” and also part of the Stand
Your Ground law, provides in relevant part that
[a] person who uses force as permitted in s.
776.012, s....
...Then, the doctrine of in
pari materia applies.”
105 So. 3d at 20 (emphasis added).
Respectfully, to suggest that the doctrine of in pari materia applies in
every case is incorrect as a matter of law. As the circuit court
correctly found in this case, because sections
776.012(1)’s and
776.032(1)’s plain language is clear and unambiguous, Caamano
“need not have gone into the doctrine of in pari materia at all.” See
English v....
...As the Second District’s analysis recognizes, given the question presented
in this case and the arguments made, some consideration of section
776.05, Fla.
Stat., is necessary in order to determine whether it creates an ambiguity not
otherwise apparent on the face of sections
776.012(1) and
776.032(1), Fla....
...king
the arrest.” §
776.05, Fla. Stat. At the heart of the State’s argument lies the
observation that the defense recognized in this law enforcement use of force
statute, section
776.05, may overlap in some cases with the defense created in
section
776.012 (“[A] person is justified in the use of deadly force and does not
have a duty to retreat if ....
.... . [h]e or she reasonably believes that such force is
necessary to prevent imminent death or great bodily harm to himself or herself or
another”). In other words, there may be cases in which a person justified in the use
of deadly force under section
776.012 is also a law enforcement officer justified in
the use of force under section
776.05....
...e
from criminal prosecution” such that he is entitled to a pretrial immunity
determination. That immunity is addressed only in section
776.032(1), which
plainly says that the immunity is afforded to any “person who uses force as
permitted in s.
776.012.” §
776.032(1)....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2000 Fla. App. LEXIS 16217
..."A person is justified in the use of 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 such other's imminent use of unlawful force.” § 776.012, Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2013 WL 6479037
...The underlying criminal case involves a tragic deadly shooting in a post office parking lot. *868 In Case No. 4D12-4559, the defendant petitioned this court for a writ of prohibition, challenging an order that denied his motion to dismiss the criminal charges against him under sections
776.032 and
776.012, Florida Statutes (2009), the “Stand Your Ground” law....
...The victim exited his vehicle, and angrily approached the defendant, yelling at him. Fearing for his safety, the defendant shot and killed the victim. The State charged the defendant with manslaughter. The defendant moved to dismiss the Information based on sections
776.012 and
776.032, Florida Statutes, the “Stand Your Ground” law....
...The State then requested the trial court to determine whether the defendant’s possession of a firearm on post office property constituted “unlawful activity” under section
776.013(3). Defense counsel argued that such a determination was unnecessary because the motion to dismiss was based on section
776.012, and not
776.013....
...arm on post office property did not constitute “unlawful activity” pursuant to section
776.013(3), Florida Statutes (2009). 2 The defendant has maintained all along that such a determination was unnecessary because the defense motion relied upon section
776.012 and not
776.013. The exception for a defendant’s engagement in “unlawful activity” does not exist under section
776.012. We agree with the defendant. The trial court need not have addressed this issue. Section
776.012, Fla....
...ent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or (2) Under those circumstances permitted pursuant to s.776.013. (emphasis added). There is no similar provision in section
776.012 limiting immunity if the defendant is involved in “unlawful activity.” Section
776.013, Fla....
...At first glance, the title to each section of chapter 776 demarcates the line between justifiable use of force in defense of self and others and the presumption that applies under the castle doctrine. As the Second District explained in Little v. State,
111 So.3d 214, 219 (Fla. 2d DCA 2013), sections
776.012,
776.013, and
776.032 provide alternative forms of immunity. We do not agree that there is a conflict between the provisions in sections
776.012(1) and
776.013(3)....
...Section
776.013(3) provides for the justifiable use of deadly force by a law-abiding person outside of the “castle,” but it does not preclude persons who are engaged in an unlawful activity from using deadly force in self-defense when otherwise permitted. In fact, the Stand Your Ground law expressly amended section
776.012 to provide that the use of deadly force is justified under the circumstances set forth in both sections
776.012(1) and
776.013....
...[[Image here]] Section
776.013(3) applies when a person is (1) not engaged in an unlawful activity and (2) attacked in any place outside the “castle” as long as (3) he or she has a right to be there. A person who does not meet these three requirements would look to section
776.012(1) to determine whether the use of deadly force was justified....
...er the "Stand Your Ground” law, section 766.013(3). Bragdon v. State,
123 So.3d 654 (Fla. 4th DCA 2013). We certified conflict with Little v. State,
111 So.3d 214 (Fla. 2d DCA 2013) (holding trial court erred in denying immunity to defendant under section
776.012).
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 12453, 2016 WL 4380074
...s was irrelevant to the other charges. “The standard of review for the denial of a motion for severance is abuse of discretion.” Stephens v. State,
863 So.2d 434, 436 (Fla. 4th DCA 2003). Florida’s Stand Your Ground law is codified in sections
776.012 and
776.013. Section
776.012, Florida Statutes (2010) (amended 2014), provides: Use of force in defense of person A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such condu...
..., including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony. (emphasis added). “Unlike section
776.013, section
776.012(1) does not -mention that the protections of the statute are unavailable to a person engaged in an unlawful activity.” Hill v. State,
143 So.3d 981, 983 (Fla. 4th DCA 2014) (en banc). 1 As such, courts *1054 have held that, when a defense is based only on section
776.012(1), it is an abuse of discretion to- refuse to sever a possession of a firearm charge from a charge of murder....
...the alleged error.’ ” Krause v. State,
98 So.3d 71, 73 (Fla. 4th DCA 2012) (quoting Bassallo v. State,
46 So.3d 1205, 1209 (Fla. 4th DCA 2010)). This court has held it is fundamental error to instruct a jury on a duty ' to retreat ■ where only section
776.012(1) applies, and not where section
776.013(3) is applicable. Rios v. State,
143 So.3d 1167 (Fla. 4th DCA 2014); Dorsey v. State,
149 So.3d 144 (Fla. 4th DCA 2014). In the instant case, because appellant re lied on both sections
776.012 and
776.013 in his defense, and a duty to retreat instruction was relevant and proper for section
776.013, the reading of the instruction was not in error in this case....
...ith a depraved mind, as required under section
782.04(2), Florida Statutes. As such, we affirm. Affirmed. CIKLIN, C.J., and FORST, J., concur. . These are the versions of the statute that were in effect at that time. In 2014, the legislature amended section
776.012(2) to state that a defendant may stand his or her ground only if "not engaged in a criminal activity and is in a place where he or she has a right to be.” Section
776.013(3) now pertains only to "[a] person who is attacked in *1054...
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2014 WL 3928449, 2014 Fla. App. LEXIS 12423
...The underlying
criminal case involves a tragic deadly shooting in a post office parking lot.
In Case No. 4D12-4559, the defendant petitioned this court for a writ
of prohibition, challenging an order that denied his motion to dismiss the
criminal charges against him under sections
776.032 and
776.012,
Florida Statutes (2009), the “Stand Your Ground” law....
...The victim exited his
vehicle, and angrily approached the defendant, yelling at him. Fearing for
his safety, the defendant shot and killed the victim.
The State charged the defendant with manslaughter. The defendant
moved to dismiss the Information based on sections
776.012 and
776.032,
Florida Statutes, the “Stand Your Ground” law....
...rmine whether the
defendant’s possession of a firearm on post office property constituted
“unlawful activity” under section
776.013(3). Defense counsel argued that
such a determination was unnecessary because the motion to dismiss was
based on section
776.012, and not
776.013....
...office property did not constitute “unlawful activity” pursuant to section
3
776.013(3), Florida Statutes (2009).2 The defendant has maintained all
along that such a determination was unnecessary because the defense
motion relied upon section
776.012 and not
776.013. The exception for a
defendant’s engagement in “unlawful activity” does not exist under section
776.012. We agree with the defendant. The trial court need not have
addressed this issue.
Section
776.012, Fla....
...himself or herself or another or to prevent the imminent
commission of a forcible felony; or
(2) Under those circumstances permitted pursuant to s.
776.013.
(emphasis added). There is no similar provision concerning involvement
in unlawful activity in section
776.012.3
2 We have held that possession of a firearm by a convicted felon constitutes
“unlawful activity” and precludes immunity under the “Stand Your Ground” law,
section 766.013(3). Bragdon v. State,
123 So. 3d 654 (Fla. 4th DCA 2013). We
certified conflict with Little v. State,
111 So. 3d 214 (Fla. 2d DCA 2013) (holding
trial court erred in denying immunity to defendant under section
776.012). The
Supreme Court of Florida has granted review. Bragdon v. State, No. SC13-2083
(Fla. July 2, 2014).
3 The legislature amended section
776.012(2) this year with an effective date of
June 20, 2014. See Ch. 2014-195, § 3, Laws of Fla. (to be codified at §
776.012,
Fla....
...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.” § 776.012(2), Fla....
...776 demarcates the
line between justifiable use of force in defense of self and others and the
presumption that applies under the castle doctrine. As the Second District
explained in Little v. State,
111 So. 3d 214, 219 (Fla. 2d DCA 2013),
sections
776.012,
776.013, and
776.032 provide alternative forms of
immunity.
We do not agree that there is a conflict between the
provisions in sections
776.012(1) and
776.013(3)....
...law-abiding person outside of the “castle,” but it does not
preclude persons who are engaged in an unlawful activity from
using deadly force in self-defense when otherwise permitted.
In fact, the Stand Your Ground law expressly amended section
776.012 to provide that the use of deadly force is justified
under the circumstances set forth in both sections
776.012(1)
and
776.013.
....
....
Section
776.013(3) applies when a person is (1) not
engaged in an unlawful activity and (2) attacked in any place
outside the “castle” as long as (3) he or she has a right to be
there. A person who does not meet these three requirements
would look to section
776.012(1) to determine whether the use
of deadly force was justified....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2016 WL 1688319, 2016 Fla. App. LEXIS 6421
...reasonably believed that it was necessary to do so to prevent
death or great bodily harm to himself or to prevent the
commission of a forcible felony.
First, the requested instruction accurately stated the law regarding a
lack of a duty to retreat. Section 776.012, Florida Statutes (2013), i.e.,
the “stand your ground” law, provides in pertinent part that:
[A] person is justified in the use of deadly force and does not
have a duty to retreat if:
(1) He or she reasonably...
...to prevent imminent death or great bodily harm to himself or
herself or another or to prevent the imminent commission of
a forcible felony[.]
(Emphasis added). While section
776.013, Florida Statutes (2013),
requires an element of home protection, section
776.012 does not.
3
Accordingly, the requested instruction accurately stated the law
regarding a lack of a duty to retreat.
Second, the evidence produced in the case supported giving the
instruction....
CopyPublished | Florida 5th District Court of Appeal
...* That’s
because none of the alleged missteps that Appellant assigns to his
trial counsel prejudiced his defense. Even if the entire body of
corroborating evidence and testimony had been admitted—
whether at an immunity hearing, at trial, or both—there is no
reasonable probability of a different result.
Section 776.012(2), Florida Statutes (2017), marks the
boundaries of justified use of deadly force in self-defense:
* We do not decide whether counsel performed deficiently by
failing to file a Stand Your Ground motion to dismiss....
CopyPublished | Florida 4th District Court of Appeal
...t
to use deadly force without retreating, under certain circumstances.
Section
776.013(3), Florida Statutes (2013) permitted the use of deadly
force to prevent death or great bodily harm, so long as the defender was
not engaged in unlawful activity. Section
776.012(1), Florida Statutes
(2013) lacked the unlawful activity element, but required that the threat
be imminent....
....
...
If the defendant was not engaged in unlawful activity and was
attacked in any place where he had a right to be, he had no
1 Shell casings were found 187 feet away from the victim’s bloodstains found in
the roadway.
2 Section 776.012 has since been amended to require that a shooter not be
engaged in criminal activity. See § 776.012, Fla....
...With respect to the first issue, the State agrees that the jury instruction
was improper because the law in effect at that time of the offense did not
impose a duty to retreat before using deadly force, even if the defendant
was engaged in an unlawful activity at the time. See §
776.012(1), Fla.
Stat. (2013); see also Little v. State,
111 So. 3d 214, 221 (Fla. 2d DCA
2013) (noting that a defendant engaged in unlawful activity could seek
Stand Your Ground immunity under section
776.012 even though the
unlawful activity would preclude immunity under section
776.013).
However, because Appellant did not object to the jury instruction, it
“can be raised on appeal only if fundamental error occurred.” State v.
Delva, 575 So....
CopyPublished | Florida 4th District Court of Appeal
...Although petitioner admits he shot the victim, he
presented no evidence that he acted justifiably in using deadly force, which
requires a showing that he “reasonably” believed that the use of deadly
force was “necessary to prevent imminent death or great bodily harm.” See
§ 776.012(2), Fla....
CopyPublished | Florida 2nd District Court of Appeal
...And prejudice exists when the defendant shows "a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would have
been different." Strickland,
466 U.S. at 694.
Mr. Bolduc's self-defense theory was based on section
776.012(1), Florida
Statutes (2011), governing use of force in defense of the person, which provides that a
person is justified in using deadly force and has no duty to retreat if he reasonably
believed such force was necessary to prevent imminent death or great bodily harm or
the imminent commission of a forcible felony. Prior to 2014, the statute did not require
that the person using deadly force not have been engaged in unlawful activity when
such force was used. See §
776.012, Fla. Stat. (2014). Put differently, as far as the
-3-
text of section
776.012(1) as it existed was concerned, a person could be engaged in
unlawful activity but still legally claim that his or her use of deadly force was justified so
long as the use of such force was reasonably believed to have been necessary to
prevent imminent death or great bodily harm or the imminent commission of a forcible
felony.
Although section
776.012(1) did not, in 2011, require that the defendant
not be engaged in unlawful activity, section
776.013(3), a subsection governing the use
of force outside the home, did contain such a requirement. This created some
confusion over whether section
776.013(3) expressed or implied a requirement that a
defendant claiming self-defense under section
776.012(1) not have been engaged in
unlawful activity at the time of the use of deadly force....
...3d 1167, 1170-71 (Fla.
4th DCA 2014). Our court resolved that question in 2013 in Little v. State,
111 So. 3d
214, 218-22 (Fla. 2d DCA 2013), in which we held conclusively that it did not.
On June 20, 2014, the last day of Mr. Bolduc's trial, an amended version
of section
776.012 went into effect. This new version of the statute restricted the
availability of the defense of justifiable use of deadly force to when the defendant is "not
engaged in a criminal activity" and is "in a place where he or she ha[d] a right to be."
§
776.012(2), Fla....
...The postconviction court held that Mr. Bolduc's trial counsel "had a legal
basis to object to the portion of the instruction indicating that the defendant did not have
a duty to retreat." Indeed, our decision in Little that a defendant claiming self-defense
under section 776.012(1) was not subject to a requirement that he or she not have been
engaged in unlawful activity had been on the books for over a year when Mr....
...Bolduc has raised a facially sufficient claim that his trial
counsel performed deficiently by failing to object.4 See Adams v. State,
727 So. 2d 997,
3Little
dealt with the words "unlawful activity" in section
776.013(3), while
the amended version of section
776.012(1) uses the words "criminal activity," but we do
not see a material difference in these expressions, at least as applicable to this case.
4Although the postconviction court did not address the question in its
order, to the extent that Mr....
...ms' defense meets the first prong of
Strickland."); cf. Andujar-Ruiz v. State,
205 So. 3d 803, 806 (Fla. 2d DCA 2016) (holding
that appellate counsel performed deficiently by failing to challenge inaccurate instruction
based on 2014 amendments to section
776.012(1) when the earlier version of the
statute applied and the error was fundamental).
Turning to the prejudice prong, the record attached to the postconviction
court's order shows that Mr....
...version of events wherein he adamantly denied participating in any criminal activity at
the time of the confrontation."
But the jury need not have believed every part of Mr. Bolduc's story in
order to conclude that his use of force was justified under section 776.012(1) as it
existed prior to 2014....
...ding that Mr. Bolduc was engaged in unlawful
activity meant that a self-defense defense was not available to Mr. Bolduc, would almost
certainly find him guilty. By contrast, a jury correctly instructed on the justifiable use of
deadly force under section 776.012(1), and which made the same factual findings,
would be likely to acquit....
CopyPublished | Florida 4th District Court of Appeal
...The defendant does not dispute that he shot
the victim. He claims he is immune from prosecution because he
reasonably believed that his use of deadly force was necessary to prevent
imminent death or great bodily harm or to prevent the imminent
commission of a forcible felony. §§
776.012(2),
776.032(1), Fla....
...re justified in using deadly
force. All that is required is that he or she reasonably believe that using
such force is necessary to prevent “imminent death or great bodily harm”
or to prevent “the imminent commission of a forcible felony.” §§
776.012(2),
776.032(1), Fla. Stat.
No longer does a person have a duty to retreat before using deadly force
if he or she “is not engaged in a criminal activity and is in a place where
he or she has a right to be.” §
776.012(2), Fla....
...view of the person at the time the person used deadly force.” Smith v.
3 The court did not expressly address whether the defendant had an objectively
reasonable belief that the use of deadly force was necessary to prevent the
imminent commission of a forcible felony. See § 776.012(2), Fla....
...m.
These circumstances support the defendant’s position that a
reasonable person would have believed that the use of deadly force was
necessary to prevent imminent death or great bodily harm or the imminent
commission of a forcible felony. See § 776.012(2), Fla....
...ctim got out of his car.
We are mandated to follow the law as dictated by our legislature. Under
existing law, the defendant did not have a duty to retreat, warn the victim
that he had a gun, or otherwise try to avoid or defuse the threat posed. §
776.012(2), Fla....
...treat that
the defendant did not have).
In sum, we reach the only legally imposed conclusion that the state
failed to meet its burden of proving by clear and convincing evidence that
the defendant’s use of deadly force was not justified under section
776.012(2)....
...3d DCA 2015)).
Per our opinion, Spencer will not be tried for first-degree murder,
second-degree murder, manslaughter, or any other count stemming from
his shooting Bell. Nonetheless, I concur in the majority opinion as I am
compelled to conclude that our current applicable SYG “deadly force”
statutes (§§
776.012(2),
776.032(1), Fla....
CopyPublished | Florida 1st District Court of Appeal | 2015 Fla. App. LEXIS 13186, 2015 WL 5164901
...SC14-2110,
2015 WL 2171635 (Fla. May 6, 2015), we reverse Appellant’s judgment and sentence for second-degree murder and remand for a new trial. The trial court committed reversible error when it failed to instruct the jury on Appellant’s theory of self-defense based on section
776.012(1), Florida Statutes (2012), notwithstanding the fact that he was a convicted felon in unlawful possession of a firearm at the time of the deadly shooting....
CopyPublished | Florida 1st District Court of Appeal | 2015 Fla. App. LEXIS 13128, 2015 WL 5164873
...It is so supported, and thus, must be affirmed. Second, as to the justifiable-use-of-deadly-force instruction, based on recent decisions from this court and other district courts holding that a person may claim justifiable use of deadly force under section 776.012(1), Florida Statutes, 1 even if he was engaged in unlawful activity, the trial court incorrectly stated that granting Robinson’s request for an instruction under section 776.012(1) required allowing the State to put on evidence showing he was engaged in unlawful activity — possession of a firearm by a juvenile adjudicated delinquent — and thus, had a duty to retreat before using deadly force....
...re was evidentiary support, was that he did not shoot at Henderson, and he never intended to do so. Finding no reversible error by the trial court, we affirm Robinson’s convictions and sentences. AFFIRMED. ROBERTS, C.J., and SWANSON, J., concur. . 776.012 Use of force in defense of pérson.— A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessaiy to defend himself or herself against the other's imminent use of unlawful force....
...ably believes that 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; or (2) Under those circumstances permitted pursuant to s.
776.013. §
776.012, Fla....
CopyPublished | Florida 5th District Court of Appeal
...e felony.
Given the evidence presented at trial, it was error to give the above jury instruction
which included a duty to retreat if the defendant was engaged in an unlawful activity as
the circumstances involved in the shooting fell under section
776.012 rather than
776.013.
See Miles v....
CopyPublished | Florida 2nd District Court of Appeal | 2016 Fla. App. LEXIS 13927
...deadly force if he or she reasonably
believes that using . . . such force is necessary to prevent imminent death or great
bodily harm to himself . . . or another or to prevent the imminent commission of a
-5-
forcible felony." § 776.012(2). However, nondeadly force may be used when the
defendant "reasonably believes that such conduct is necessary to defend himself . . . or
another against . . . imminent use of unlawful force." § 776.012(1)....
...Such an instruction is not only inapplicable to the facts of this case,
but actually made it more difficult for Marty to establish that he was defending himself.
That is, the use of deadly force is permitted in a narrower set of circumstances as
compared to the use of nondeadly force. Compare §§
776.012(2), .031(2),
782.02, with
§§
776.012(1), .031(1)....
...self-defense instruction presented for the jury's consideration. In other words, Marty
may have been justified in displaying his firearm (nondeadly force) to prevent an
"imminent use of unlawful force" or "tortious . . . interference with" his property, see §§
776.012(1), .031(1), but not entitled to discharge his firearm (deadly force) because he
did not reasonably believe that he was in danger of "imminent death or great bodily
-8-
harm," or that Valenzuela would commit a forcible felony against him or his property,
see §§
776.012(2), .031(2),
782.02.
This scenario seems even more plausible upon review of Marty's trial
testimony....
CopyPublished | Florida 4th District Court of Appeal
imminent commission of a forcible felony.” §
776.012(2), Fla. Stat. (2015). “The conduct of a
CopyPublished | Florida 4th District Court of Appeal | 2014 Fla. App. LEXIS 15623, 2014 WL 4996171
...2001)
(citation and emphasis omitted).
Defendant argues that the trial court erred by instructing the jury that
being a felon in possession of a firearm was “unlawful activity,” and that if
he was engaged in unlawful activity, the jury had to consider his duty to
retreat. Defendant claims that under section 776.012(1), Florida Statutes
(2012), he had no duty to retreat even if engaged in an unlawful activity.
Because defendant did not object to the instruction, it “can be raised
on appeal only if fundamental error occurred.” State v....
...tself to the
extent that a verdict of guilty could not have been obtained without the
2
assistance of the alleged error.” Barnett v. State,
121 So. 3d 643, 646-47
(Fla. 4th DCA 2013) (citation omitted).
Section
776.012, Florida Statutes (2012), provides:
A person is justified in using force, except deadly force,
against another when and to the extent that the person
reasonably believes that such conduct is necessary to defen...
...if:
(1) He or she reasonably believes that 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 . . . .
Section
776.012 does not contain any requirement that the person
claiming protection under the statute not be engaged in “unlawful
activity,”2 unlike section
776.013(3), Florida Statutes (2012), which
provides:
A person who is not eng...
...tion on his
“right to stand his ground.” Instead, the court instructed the jury
regarding the defendant’s duty to retreat. On appeal, the defendant raised
2 As noted in Rios v. State,
143 So. 3d 1167 (Fla. 4th DCA 2014), the recently
amended section
776.012, effective June 20, 2014, applies only to “[a] person . .
. not engaged in a criminal activity.” Id. at 1170 n.3 (citing §
776.012, Fla....
...ect Defendant’s case,” as he will be entitled
to the 2012 version on re-trial. Id. (citing Smiley v. State,
966 So. 2d 330, 335-
36 (Fla. 2007)).
3
an unpreserved argument that he had no such duty under section
776.012(1) of Florida’s Stand Your Ground law. This court reversed upon
finding fundamental error, because the defendant “was entitled to the
protection of the Stand Your Ground law” under “section
776.012(1),
which does not include language on ‘unlawful activity,’ [and] is separate
from section
776.013(3).” Id. at 1170. See also Hill v. State,
143 So. 3d
981, 985 (Fla. 4th DCA 2014) (holding that a felon in possession of a
firearm could still rely upon Stand Your Ground under section
776.012,
because that section had “no language precluding the justifiable use of
deadly force where the person claiming self-defense is engaged in an
unlawful activity” as compared to section
776.013(3)); State v. Wonder, 39
Fla. L. Weekly D1695 (Fla. 4th DCA Aug. 13, 2014) (explaining that a
person engaged in an unlawful activity “would look to section
776.012(1)
to determine whether the use of deadly force was justified”); Little v....
...3d 214, 222 (Fla. 2d DCA 2013) (holding that because the
defendant “was a felon in illegal possession of a firearm, his use of force
did not fall within the protections of section
776.013,” but that did not
preclude him claiming immunity under section
776.012).
We find that the trial court’s instruction to the jury constitutes
fundamental error....
CopyPublished | Supreme Court of Florida
...§
776.032(1), Fla. Stat. (2017). The immunity from
prosecution “includes arresting, detaining in custody, and charging
or prosecuting the defendant.” Id. Section
776.032 provides
immunity for “[a] person who uses or threatens to use force as
permitted in s.
776.012, s.
776.013, or s.
776.031.” Id. Relevant to
this case, section
776.012 provides:
(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 def...
...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.
§ 776.012, Fla....
CopyPublished | Florida 3rd District Court of Appeal
...Martinez, Public Defender, and Susan S. Lerner, Assistant
Public Defender, for appellant.
Ashley Moody, Attorney General, and Daniel Colmenares, Assistant
Attorney General, for appellee.
Before EMAS, FERNANDEZ and BOKOR, JJ.
PER CURIAM.
Affirmed. See § 776.012(1), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2008 Fla. App. LEXIS 16445, 2008 WL 4681172
...ons. We find no reversible error. The question whether Attardo was justified in the use of deadly force in defense of another was a question of fact for the jury to decide, given the evidence of events and circumstances surrounding the shooting. See § 776.012, Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2011 Fla. App. LEXIS 16505, 2011 WL 4949981
...Here, it cannot be reasonably inferred from the evidence presented at trial that M.S. acted in self-defense. For M.S. to have acted in self-defense, it must have appeared to a reasonable person in her situation that M.S. needed to defend herself from “imminent use of unlawful force.” See § 776.012, Fla....
CopyPublished | Florida 4th District Court of Appeal
...came around the corner of the building and asked what happened. The
petitioner gave his version of the events to the pit bull’s owner and then
left.
After the state filed charges, the petitioner moved to dismiss the
prosecution based on immunity under section
776.012(2), Florida Statutes
(2022) (providing for the justifiable use of deadly force in defense of
person), and section
776.032(1), Florida Statutes (2022) (providing for
immunity from prosecution when force is used as permitted by section
776.012)....
...Additionally, “[t]he plainness or
ambiguity of statutory language is determined by reference to the language
itself, the specific context in which that language is used, and the broader
context of the statute as a whole.” Robinson v. Shell Oil Co.,
519 U.S. 337,
341 (1997).
We first consider the language of section
776.012, authorizing the use
or threatened use of force in defense of person:
(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 reaso...
...as 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.
3
§ 776.012, Fla. Stat. (2022) (emphasis added).
Section 776.012’s plain text distinguishes the authorizations for the
use of nondeadly and deadly force in defense of person. Nondeadly force
in defense of person is authorized when used against “another” to defend
“against the other’s imminent use of unlawful force.” § 776.012(1), Fla.
Stat. (2022). Deadly force in defense of person is authorized when
“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.” § 776.012(2), Fla. Stat. (2022). As can be seen from section
776.012’s plain text, deadly force, in contrast to nondeadly force, does not
include language that the force must always be used against a person.
Thus, we conclude that section 776.012(2) authorizes deadly force against
an animal when the person using or threatening to use the force “believes
such force is necessary to prevent imminent death or great bodily harm to
himself or herself or another.” 1
The petitioner’s motion to dismiss travels on the authorization of deadly
(not nondeadly) force in defense of person, specifically under section
776.012(2)’s use of the phrase “necessary to prevent imminent death or
great bodily harm to himself or herself or another.” Thus, we agree that
section 776.012(2)’s plain, unambiguous text does not require that the
deadly force be used against a person, rather than against an animal. And
we will not add words limiting section 776.012(2)’s application to force
solely against persons and not animals....
...State,
750 So. 2d 1, 4 (Fla. 1999))).
Section
776.032(1), which grants immunity from criminal and civil
actions for authorized uses of force, does not change this result. It
provides:
A person who uses or threatens to use force as permitted in s.
776.012 ....
...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
1 The trial court reasoned that, in the context of deadly force being used to prevent
a forcible felony under section 776.012(2), an animal cannot commit a forcible
felony....
...ive, or heirs of the person
against whom the force was used or threatened” clearly means that a
defendant in a civil action is immune from civil prosecution by the
plaintiff/decedent if the defendant used or threatened to use force
permitted under section 776.012 against the plaintiff/decedent....
...language is susceptible to differing constructions must be resolved in favor
of the person charged with an offense.’” (quoting State v. Byars,
823 So.
2d 740, 742 (Fla. 2002))).
Conclusion
We conclude as a matter of law, based on section
776.012(2)’s and
section
776.032(1)’s plain meaning and context, a person is immune from
criminal prosecution for the use of deadly force against an animal where
the person has a reasonable belief that such force is necessary to prevent
i...
...nity from civil actions
regarding use of force against an animal, as that issue is not before us.
4 We recognize our opinion may make criminal prosecutions for animal cruelty
more challening for the state when a defendant claims self-defense under section
776.012(2)....
...plied “from our earliest decisions
to our most recent.” Lockhart v. United States,
577 U.S. 347, 351 (2016).
The Stand Your Ground statutory provision in dispute provides that
“[a] person who uses or threatens to use force as permitted in s.
776.012 ....
CopyPublished | Florida 5th District Court of Appeal
...2
Ultimately, Appellee pushed his cellmate up against the wall, placed his
hands on both sides of the cellmate’s head, and yelled at him.
Appellee filed his motion to dismiss based on the Stand Your Ground
law. Section 776.012(1), Florida Statutes (2019), states in pertinent part that
a person is justified in using non-deadly force against another “to the extent
that the person reasonably believes that such conduct is necessary to defend
himself ....
CopyPublished | Florida 2nd District Court of Appeal | 13 Fla. L. Weekly 2310, 1988 Fla. App. LEXIS 4511
...First, E.B: contends that the trial court erred in sustaining the state’s objection to E.B.’s testimony that he was aware that *1054 Randall had a reputation as a good fighter and that on a previous occasion Randall had threatened to beat E.B. A defendant who asserts that he acted in self-defense, § 776.012, Fla.Stat....
CopyPublished | District Court of Appeal of Florida
“Stand Your Ground” law. As it read in 2010, section
776.012 of Florida’s Stand Your Ground law stated,
CopyPublished | Florida 2nd District Court of Appeal
...gravated battery
causing great bodily harm, permanent disability, or permanent disfigurement.
§
784.045(1)(a)(1), Fla. Stat. (2016). He now seeks a writ of prohibition after the trial
court denied his "Stand Your Ground" motion to dismiss. See §§
776.012 and
776.032,
Fla....
...Melchild's eye. He was scared and thought it necessary to
incapacitate Mr. Melchild because he had no chance of escape.
Mr. Garcia moved to dismiss the charge against him based on the
statutory immunity provided by sections
776.032 and
776.012....
...Thus, prohibition is not the appropriate vehicle under which to
proceed. We best proceed under our certiorari jurisdiction. Jefferson,
264 So. 3d at
1023.
Section
776.032(1) provides immunity to a person using force as
permitted in sections
776.012,
776.013, or
776.031. Section
776.012(1) authorizes the
use of nondeadly force when a defendant reasonably believes such force is necessary
to defend himself or herself against another's imminent use of unlawful force. There is
no duty to retreat before using nondeadly force under section
776.012(1). Under
section
776.012(2), a defendant is justified in using deadly force if he reasonably
believes that such force is necessary to prevent imminent death or great bodily harm to
himself, or to prevent the imminent commission of a forcible felony. Under section
776.012(2), a person who uses deadly force does not have a duty to retreat and has the
right to stand his or her ground if he or she is not engaged in a criminal activity and is in
a place where he or she has a right to be....
...Toledo v. State,
452 So. 2d 661, 662-663 (Fla. 3d DCA 1984).
The trial court found that any force used by Mr. Melchild was lawful to
remove Mr. Garcia, a trespasser. In the trial court's view, Mr. Garcia was not entitled to
immunity under section
776.012(1) because he was not defending against the imminent
use of unlawful force....
...-5-
See §
776.013(1)(a). No evidence suggested that Mr. Melchild's initial use of force was
necessary to defend against any imminent use of unlawful force by Mr. Garcia.
The trial court also concluded that section
776.012(2) only applies if the
person using deadly force is not engaged in a criminal activity and is in a place where
he has a right to be. According to the trial court, Mr. Garcia was not entitled to immunity
under section
776.012(2) because he was a trespasser at the moment leading to the
affray.
A defendant who is engaged in unlawful activity or who is in a place where
he does not have a right to be, has a duty to retreat and must use all rea...
...imminent commission of a forcible felony.
Conclusion
Because the trial court erred in its legal conclusion that Mr. Melchild's
initial use of force was lawful, which prevented Mr. Garcia from asserting immunity
under section 776.012(1), and in its conclusion that section 776.012(2) applies only if
the defendant was in a place where he had a right to be at the time of the incident, we
grant the petition and quash the order denying Mr....
CopyPublished | Supreme Court of Florida
dwelling and had the right to be there while §
776.012(1), and §
776.031(2), Fla. Stat., cover other
CopyPublished | Florida 4th District Court of Appeal
...and remand
for further proceedings.
Background
The State charged Chavers with second-degree murder with a firearm
occurring on November 13, 2015. Chavers filed a motion to dismiss based
on immunity under sections
776.012(2) and
776.032(1), Florida Statutes
(2016), and Florida Rule of Criminal Procedure 3.190(b)....
...must be supported by competent substantial evidence.” Joseph v. State,
103 So. 3d 227, 229 (Fla. 4th DCA 2012). “The trial court’s legal
conclusions are reviewed de novo.” Id. at 230.
Chavers sought immunity from prosecution under sections
776.032(1)
and
776.012(2), Florida Statutes (2016). Section
776.032(1) provides, in
pertinent part:
(1) A person who uses or threatens to use force as permitted
in s.
776.012, s.
776.013, or s.
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 . . . .
§
776.032(1), Fla. Stat. (2016). Section
776.012(2), provides:
(2) 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...
...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.
§ 776.012(2), Fla....
...The State asserts that the trial court erred in granting Chavers’s motion
to dismiss without first determining as a matter of fact whether Chavers
3
was “engaged in a criminal activity.” The State argues that immunity
pursuant to section 776.012(2) is unavailable if Chavers was involved in a
criminal activity just prior to shooting the victim....
...(carrying a concealed firearm without a license) or a misdemeanor (open
carry of a firearm). Thus, the State contends that because Chavers was
engaged in committing either criminal activity, he is not entitled to
immunity.
Chavers responds with three arguments: (1) section 776.012(2) permits
a person engaged in criminal activity to use deadly force if he or she
satisfies the common-law duty to retreat; (2) the evidence showed that
Chavers might have been openly carrying a firearm, merely a second-
degree misdemeanor, which does not or should not qualify as a criminal
activity for the purposes of section 776.012(2); and (3) it is the State’s
burden to show that Chavers was engaged in a criminal activity, and the
State did not satisfy this burden.
Both the State and Chavers contend the language of section 776.012(2)
is unambiguous and does not require statutory interpretation, yet
standing on that contention, both sides argue the application of the statute
yields diametrically opposite results. The primary difference between both
sides is the import of the second sentence of section 776.012(2). Our
opinion focuses on the import of the second sentence, and we do not
address Chavers’s arguments regarding what constitutes “a criminal
activity” for purposes of section 776.012(2) and who has the burden of
proof at the evidentiary hearing to determine immunity....
...posed positions with three
preliminary observations. First, immunity is granted statutorily in the
context of both deadly and non-deadly force. This is obvious because
section
776.032 requires that the use of force be permitted under either
sections
776.012,
776.013, or
776.031, and each of those sections
provides for the use of deadly and non-deadly force. See §§
776.032,
776.012,
776.013, and
776.031, Fla....
...defense as an affirmative defense at trial.”).
It is because the legislature has linked the use of force to no duty to
retreat under certain situations that we agree with the State that immunity
cannot be granted in this case unless the requirements of the second
sentence of section
776.012(2) are met. The legislature’s intent was clear
and unambiguous in the 2014 amendment to section
776.012 when it
enacted subsection (1) to apply to non-deadly force, subsection (2) to apply
to deadly force, and included in subsection (2) a provision for no duty to
retreat when deadly force is used, provided the person using deadly force
“is not engaged in a criminal activity and is in a place where he or she has
a right to be.” See §
776.012, Fla. Stat. (2016). We conclude the
distinction in the duty to retreat in section
776.012 between deadly and
non-deadly force is imported into section
776.032 under the section
776.012(2) path for immunity....
...engaged in a criminal activity, and (3) was in a place he had a right to be.
In this case, the written order of the trial court granting immunity does
not make any findings or reach any conclusions as to the requirements of
the second sentence of section 776.012(2)....
...Thus,
we reverse and quash the order below granting immunity and remand for
the trial court to enter an appropriate order after making additional
findings regarding the requirements of the second sentence in section
5
776.012(2)....
CopyPublished | Court of Appeals for the Eleventh Circuit
...Penley
and noted that the Penleys failed to present any evidence that would negate the
lieutenant’s privilege. It therefore granted summary judgment to Lieutenant
Weippert and Sheriff Eslinger as to the Penleys’ state law claims.
Under Florida law, “[a] person who uses force as permitted in §
776.012 . . .
is justified in using such force and is immune from criminal prosecution and civil
action for the use of such force.” Fla. Stat. §
776.032(1). Section
776.012 of the
Florida Statutes in turn establishes that individuals have no duty to retreat before
using deadly force. Id. §
776.012....
...However, the statute limits the justifiable use of
deadly force to specific circumstances, such as when the actor “reasonably believes
that such force is necessary to prevent imminent death or great bodily harm to
himself or herself or another.” Id. § 776.012(1).
As discussed at length above, Lieutenant Weippert’s conduct was
objectively reasonable and he had probable cause to believe that Mr....
CopyPublished | Florida 4th District Court of Appeal | 1998 Fla. App. LEXIS 5943, 1998 WL 263970
...We affirm appellant’s conviction of aggravated battery. There was no evidence to support appellant’s claim that he was justified in the use of non-deadly force against the victim to defend against the victim’s unlawful use of force against co-defendant Smith, pursuant to section 776.012, Florida Statutes (1997)....
CopyPublished | Florida 4th District Court of Appeal
...se 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.” § 776.012(2), Fla.
Stat....
...Thus, Burns is entitled to immunity from prosecution for his
non-deadly use of his firearm during the incident with the tree-cutting
crew. See §
776.032(1), Fla. Stat. (2020) (granting “immun[ity] from
criminal prosecution” for any use or threatened use of force “permitted in
s.
776.012, s....
CopyPublished | Florida 3rd District Court of Appeal
...of proof, requiring him to establish his entitlement to statutory immunity by a
preponderance of the evidence. The trial court concluded in its order that Bailey
“failed to prove by the preponderance of the evidence that he is immune from
prosecution pursuant to §
776.032 and §
776.012.” The instant petition followed.
While the petition was pending in this court, the Florida Legislature
amended section
776.032(4)....
CopyPublished | Florida 3rd District Court of Appeal
...Before SCALES, MILLER and LOBREE, JJ.
PER CURIAM.
Nicol Maslo seeks certiorari review of a March 11, 2024 trial court order
denying, as legally insufficient, his motion to dismiss asserting immunity from
criminal prosecution under sections
776.012(1) and
776.032(1) of the Florida
Statutes (2024) – Florida’s “Stand Your Ground” (SYG) law.1 We deny the
petition because Maslo’s SYG motion failed to establish a prima facie claim
of self-defense immunity.
1
Section
776.012(1) provides 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 nece...
...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.
§
776.012(1), Fla. Stat. (2024).
Section
776.032(1) provides, in relevant part, as follows:
(1) A person who uses or threatens to use force as permitted in
s.
776.012, s....
CopyPublished | Florida 3rd District Court of Appeal
...2d DCA
2012). Accordingly, we treat the appeal as a Petition for Writ of Prohibition
pursuant to Florida Rule of Appellate Procedure 9.040(c).
2 Arauz was also charged with credit card theft and fraudulent use of the victim’s
credit card.
3See Sections
776.012 and
776.08, Florida Statutes (2013) defining sexual battery
as a “forcible felony” for purposes of the Stand Your Ground law.
2
factual evidence presented....
CopyPublished | Florida 6th District Court of Appeal
...believed that his use of force was necessary to prevent
imminent death or great bodily harm to himself.
We turn now to explain why we grant Moore’s Petition.
Section
776.032(1) provides that “[a] person who uses . . . force as permitted
in s.
776.012 . . . is justified in such conduct and is immune from criminal
prosecution . . . .” Section
776.012, Florida Statute (2023), provides:
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...
CopyPublished | Florida 2nd District Court of Appeal | 2005 Fla. App. LEXIS 7220
...tified in the use of 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 such other’s imminent use of unlawful force. § 776.012, Fla....
CopyPublished | Florida 3rd District Court of Appeal
...This is particularly true when a
prosecutor misrepresents evidence, because a jury generally has
confidence that a prosecuting attorney is faithfully observing his obligation
as representative of a sovereignty.” (quoting Washington v. Hofbauer,
228
F.3d 689, 700 (6th Cir. 2000))); see also §
776.012(1), Fla....
CopyPublished | District Court of Appeal of Florida | 1983 Fla. App. LEXIS 18940
...tta v. California,
422 U.S. 806, 812, n. 8 ,
95 S.Ct. 2525, 2529, n. 8 ,
45 L.Ed.2d 562 (1975). Superficially, it would appear from this limited record that the requested witnesses’ intended testimony would have been relevant to the defense. Under Section
776.012, Florida Statutes, a person always has the right to use nob-deadly force to defend himself against force even to the point of resisting arrest with force....
CopyPublished | Florida 6th District Court of Appeal
Judd and the Deputies answered that under section
776.012(2), Florida Statutes (2017), the Deputies were
CopyPublished | Florida 3rd District Court of Appeal
...following a struggle that began in his front yard. All three victims were
unarmed at the time and succumbed to multiple gunshot wounds. After he
was charged, Hoempler filed a motion to dismiss asserting immunity from
prosecution under sections
776.032 and
776.012, Florida Statutes (2023).
1
Hoempler has since been indicted for the first-degree murder of Hector
Rivera.
2
The trial court conducted a two-day hearing on the motion....
...the essential requirements of law.” A.H. v. Dep’t of Child. & Fams.,
277 So.
3d 704, 707 (Fla. 3d DCA 2019).
B
Section
776.032(1) provides in pertinent part, “A person who uses or
threatens to use force as permitted in s.
776.012, s.
776.013, or s.
776.031
is justified in such conduct and is immune from criminal prosecution . . . .”
Section
776.012(2), in turn, provides,
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 b...
CopyPublished | Florida 3rd District Court of Appeal
...in self-defense in shooting and killing Stevens. Section
776.032, entitled
“Immunity from criminal prosecution and civil action for justifiable use or
threatened use of force” provides in pertinent part:
(1) A person who uses or threatens to use force as permitted
in s.
776.012, s....
...State,
255 So. 3d
359, 362 (Fla. 4th DCA 2018) (“To raise a ‘prima facie claim of self-defense
immunity from criminal prosecution’ under section
776.032(4), a defendant
must show that the elements for the justifiable use of force are met.”)
Section
776.012(2), Florida Statutes (2016) (“Use or threatened use of
force in defense of person”) provides:
9
A person is justified in using or threatening to use deadly force if
he or she...
CopyPublished | Florida 3rd District Court of Appeal
...shooting or throwing a deadly missile, after an altercation with his neighbor,
Jose Camacho, during which Defendant shot Camacho.
Defendant filed a motion to dismiss, and an affidavit in support,
asserting he was immune from prosecution under section
776.032 and
776.012, Florida Statutes (2021) (Florida’s Stand Your Ground law).
Defendant declared the shooting was justified because he reasonably
believed it was necessary to prevent imminent death or great bodily harm to
himself....
...3d 984 (Fla.
5th DCA 2020); Bouie v. State,
292 So. 3d 471 (Fla. 2d DCA 2020).
ANALYSIS AND DISCUSSION
Section
776.032, Florida Statutes (2020) provides in pertinent part:
(1) A person who uses or threatens to use force as permitted in
s.
776.012, s....
...n 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).
Section 776.012(2), Florida Statutes (2020) provides:
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 deat...
...and convincing
evidence to establish Defendant did not reasonably believe his use of deadly
force was necessary to prevent imminent death or great bodily harm to
himself or to prevent the imminent commission of a forcible felony by
Camacho. See § 776.012(2); Jefferson v....
CopyPublished | District Court of Appeal of Florida
CopyPublished | Florida 4th District Court of Appeal
...This includes the trial court’s ultimate conclusion of whether
the use of force was justified under the facts. Bouie v. State,
292 So. 3d
471, 479–80 (Fla. 2d DCA 2020).
Section
776.032(1), Florida Statutes (2023), affords immunity to
individuals using force in defense of their person as permitted by section
776.012, Florida Statutes. Section
776.012, in turn, provides:
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...
...f 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.
§ 776.012(1), Fla....
...by the petitioner, which broke the
victim’s nose, was neither proportionate to the alleged “threat” posed by
the victim nor in self-defense. The petitioner did not present any evidence
of “imminent use of unlawful force” by the victim. See § 776.012(1), Fla.
Stat....
CopyPublished | Florida 6th District Court of Appeal
...himself. If Smith was in a place he had a right to be, then he had no
duty to retreat and had the right to stand his ground.
As explained in the notes contained in the standard jury instruction, this portion of
the instruction implements Section 776.012(2), Florida Statutes (2014), entitled,
“Use or threatened use of force in defense of person,” which states:
A person is justified in using or threatening to use deadly force if he or
she reasonably believes that usin...
...particular area but also to a specific purpose.” (emphasis added)).
14
“A person . . . does not have a duty to retreat and has the right to stand his
or her ground if the person . . . is in a place where he or she has a right to be.” §
776.012(2), Fla....
CopyPublished | Florida 6th District Court of Appeal
...himself. If Smith was in a place he had a right to be, then he had no
duty to retreat and had the right to stand his ground.
As explained in the notes contained in the standard jury instruction, this portion of
the instruction implements Section 776.012(2), Florida Statutes (2014), entitled,
“Use or threatened use of force in defense of person,” which states:
A person is justified in using or threatening to use deadly force if he or
she reasonably believes that usin...
...See Espichan v. State,
391 So.
3d 653, 656-57 (Fla. 6th DCA 2024).
5
“A person . . . does not have a duty to retreat and has the right to stand his or
her ground if the person . . . is in a place where he or she has a right to be.” §
776.012(2), Fla....
CopyPublished | Florida 4th District Court of Appeal
...by the criminal defendant in a pretrial rule 3.190(b)
motion to dismiss. The trial court is then to determine
whether, at first glance and assuming all facts as true, the
alleged facts set forth in the motion support the elements of
self-defense in either section
776.012,
776.013, or
776.031.
If the trial court determines that the defendant’s claim of self-
defense satisfies the requirements set forth in the applicable
self-defense statute raised by the accused, the State shall...
CopyPublished | Florida 1st District Court of Appeal
...This charge came after he shot and killed
the deceased in a motel room where Smith and others were doing
drugs. Smith asks this court to intervene by extraordinary writ to
prevent the circuit court from allowing the prosecution of that
charge to proceed. As Smith puts it, he is entitled to self-defense
immunity under section 776.012(2), Florida Statutes (2020)....
...force was required to prevent death or great bodily harm
was reasonable.
This determination is unchallenged, and we accept it as true.
Based on this determination, Smith should be entitled to
immunity from prosecution for the shooting death. Section
776.012(2) provides for the following:
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 g...
...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.
§ 776.012(2), Fla....
... been in a place where he did not have a right to be just means that
he did have a duty to retreat—if he reasonably could—before he
could use deadly force to defend himself. According to the circuit
court, he did not have a reasonable pathway of retreat, and we
read section 776.012(2), under such circumstances, as then
justifying Smith’s conduct rather than obviating completely his
right to use deadly force to defend himself against a threat of death
or great bodily harm.
Indeed, the circuit court here f...
...The
circuit court determined that Smith’s “display and pointing of the
firearm likely constitute[d] . . . aggravated assault.” The court,
however, appears to have denied immunity in part based on
Smith’s supposed engagement in criminal activity and its
mistaken reading of section 776.012(2), discussed above....
CopyPublished | Florida 1st District Court of Appeal
...The trial court’s factual
findings must be supported by competent substantial evidence.
Id. Legal conclusions, however, are reviewed de novo. Id.
Florida’s Stand Your Ground law confers immunity from
prosecution if an individual uses deadly force in accordance with
section
776.012(2), Florida Statutes. §
776.032(1), Fla. Stat.
Section
776.012(2), allows an individual to use or threaten 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 anoth...
...actually trespassing on Parker’s property when he began fighting
with Parker. However, we do not address this question because
Fletcher never raised it as a reason to support his immunity
claim, either below or in his petition.
3 To be clear, section 776.012(2) permits deadly force if the
person reasonably believes that using such force is necessary to
prevent imminent death or great bodily harm to another, but
adds that “[a] person who uses or threatens to use deadly force in
accordanc...
CopyPublished | Florida 1st District Court of Appeal
...I, § 8(a),
Fla. Const. The essential elements of self-defense have largely
remained the same; to wit, a person may use deadly force when it
is reasonably necessary to prevent imminent death or great bodily
harm to the person or to another person. § 776.012, Fla....
...created by adding a new section to chapter 776, Florida Statutes,
which reads as follows:
3
776.032 Immunity from Criminal prosecution and civil
action for justifiable use of force. - -
(1) A person who uses force as permitted in s.
776.012, s.
776.013, or s.776.031 is justified in using such force and
is immune from criminal prosecution and civil action for
the use of such force[.]
Sections
776.012,
776.013, and
776.031 are the general self-
defense statutes that may be asserted at trial and would have only
been allowed to be asserted at trial without the immunity provided
by section
776.032....
...2010), the
supreme court adopted a procedure from Peterson v. State,
983 So.
2d 27 (Fla. 1st DCA 2008), that required the trial court to hold an
evidentiary hearing when self-defense immunity was alleged to
determine whether that person used “force as permitted is s.
776.012, s....
CopyPublished | Florida 3rd District Court of Appeal | 2002 Fla. App. LEXIS 8253, 2002 WL 1284671
...The prosecutor’s argument, together with both the oral and written jury instructions, incorrectly misled the jury into believing that is was necessary for Pollock to be in imminent danger of death or great bodily harm from a sexual battery in order for the shooting to be justified. Section 776.012, Florida Statutes (2000), states: A person is justified in the use of 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 such other’s imminent use of unlawful force....
CopyPublished | Florida 1st District Court of Appeal
...f a car playing
with his phone. The petitioner claimed to have heard a “pow” and his friend saying,
“They got me,” after which he took a gun that was handed to him and fired. The
petitioner argued that his use of force was justified under section 776.012, Florida
Statutes (2011), because he reasonably believed firing the gun was necessary to
prevent imminent death, great bodily harm, and also the imminent commission of a
forcible felony....
...1
The State moved to strike the motion to dismiss on the grounds that the 2014
amendments to Florida’s Stand Your Ground law in House Bill 89 (HB 89)
prohibited the petitioner from asserting immunity where he was engaged in criminal
1
Section 776.012(1), Florida Statutes (2011), provided:
A person is justified in using force, except deadly force, against another
when and to the extent that the person reasonably believes that such
conduct is necessary to de...
...merely a clarification of existing law, not a substantive change in the law. On
October 28, 2014, the petitioner filed a petition for writ of prohibition in this Court.
The petition argued that the trial court impermissibly applied the 2014
amendment to section 776.012, Florida Statutes (2014), retroactively to his case,
resulting in the erroneous denial of his motion to dismiss....
...The State’s response conceded that the trial court erred in
retroactively applying the 2014 amendments to the petitioner’s case; however, it
argued that a petition for writ of prohibition was an inappropriate vehicle by which
2
On June 20, 2014, the Governor signed into law the HB 89 amendments to section
776.012, Florida Statutes (2014), which now provides, in relevant part:
(2) A person is justified in using or threatening to use the use of deadly
force and does not have a duty to retreat if he or she reasonably believes
t...
...pplying the 2014
HB 89 amendments retroactively to the petitioner’s case. The shooting here
occurred in 2011; therefore, the petitioner was entitled to application of the 2011
6
version of section 776.012(1), which did not prohibit a defendant engaged in
unlawful activity from attempting to seek Stand Your Ground
immunity....
CopyPublished | Florida 3rd District Court of Appeal
...by a convicted
felon conviction with three years minimum mandatory.
On appeal, Lee argues that the trial court erred by instructing the jury
using the amended 2014 instructions on the defense of justifiable use of
deadly force pursuant to section 776.012, Florida Statutes, rather than the
version applicable in 2013, when Lee committed the offense....
CopyPublished | Florida 2nd District Court of Appeal | 2006 WL 2088390
..."A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary *1280 to defend himself or herself or another against such other's imminent use of unlawful force." § 776.012, Fla....
CopyPublished | Florida 4th District Court of Appeal
...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.” § 776.012(2), Fla....
CopyPublished | Florida 1st District Court of Appeal
...crimes were committed in 2016 and it contained the “otherwise
engaged in criminal activity” language and no direction for the
9
trial court to define the alleged criminal activity. * See Fla. Std.
Jury Instr. (Crim.) 3.6(f); see also §
776.012(2), Fla. Stat. (2016) (“A
* In 2018, the standard jury instruction on justifiable use of
deadly force was amended, whereby the underlined portions were
added:
Give if applicable. §§
776.012(2),
776.031(2), Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2015 Fla. App. LEXIS 11042, 2015 WL 4464474
...e
defendant who was seeking an acquittal based on justifiable use of deadly force.
The justifiable use of deadly force instruction given by the trial court is
standard jury instruction 3.6(f), which incorporates, in relevant part, sections
776.012,
776.013, and
776.041 of the Florida Statutes. Section
776.012 is titled
“Use of force in defense of person” and discusses general standards for self-
defense....
...your ground provision. Section
776.041 is titled “Use of force by aggressor,” and it is the limiting statute when
deadly force may be used by the initial aggressor.
10
Chapter 776 begins with section
776.012, the statute that addresses when the
use of force is legally permissible. Section
776.012 provides as follows:
A person is justified in using 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....
...ry
to prevent imminent death or great bodily harm to himself or herself
or another or to prevent the imminent commission of a forcible
felony; or
(2) Under those circumstances permitted pursuant to s.
776.013.
§
776.012, Fla. Stat. (2010).2
2 The Florida Legislature passed a new version of §
776.012 effective June 20,
2014, that clarifies that a person has no duty to retreat when using either deadly or
non-deadly force....
...tion 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.
§ 776.012, Fla....
...to himself or herself or another or to prevent the commission of a
forcible felony.
§
776.013(3), Fla. Stat. (2010).
Section
776.032 provides immunity from criminal prosecution and civil
action for the justifiable use of force as permitted in sections
776.012,
776.013, and
776.031 (where the use of force is in defense of another).
Section
776.041 explains that the protections provided in the preceding
sections are not available to a person who:
(1) Is attempting to commit,...
...orce against himself
or herself) rev. granted by,
2014 WL 7251662 (Fla. Dec. 16, 2014).3
As the majority correctly states, the instruction given in this case properly
encompasses the statutes governing the use of force in defense of person (section
776.012), circumstances in which there is no duty to retreat (sections
776.012 and
776.013), and use of force by an aggressor (section
776.041)....
CopyPublished | Florida 3rd District Court of Appeal | 2015 Fla. App. LEXIS 11036, 2015 WL 4470032
...2010) (“We
conclude that where a criminal defendant files a motion to dismiss on the basis of
section
776.032, the trial court should decide the factual question of the
1 Arauz was also charged with credit card theft and fraudulent use of the victim’s
credit card.
2See Sections
776.012 and
776.08, Florida Statutes (2013) defining sexual battery
as a “forcible felony” for purposes of the Stand Your Ground law.
applicability of the statutory immunity.”)....
CopyPublished | Florida 6th District Court of Appeal
...ng 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.’”
Jackson v. State,
253 So. 3d 738, 740 (Fla. 1st DCA 2018) (quoting §
776.012(2), Fla.
Stat.); see also §
782.02, Fla....
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Mar 6, 2024
...Buselli argued the district court must also instruct the
jury on the Florida defenses to murder, which are excusable
homicide, justifiable homicide, and a killing by the justifiable use
of deadly force. See Fla. Stat. §§
782.02,
782.03,
776.012....
...purported
abuse.
But the use of deadly force in defense of another is justifiable
under Florida law only when protecting another from “the
imminent commission of a forcible felony.” See Fla. Stat.
§ 776.012(2) (emphasis added); Fla....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 175, 1990 WL 2077
...he trial court committed reversible error in instructing the jury, over objection, that the justifiable use of deadly force was not a defense to the armed kidnapping charge. Clearly, the defendant was entitled to use such force in self defense under Section 776.012, Florida Statutes (1987), given the above-stated version of the facts, and this threatened use and subsequent actual use of deadly force was a defense to both the armed kidnapping and murder charges....
CopyPublished | Florida 2nd District Court of Appeal
...when it is offered to "explain acts of subsequent conduct of the
declarant").
Thus, Sigismondi correctly argues that Blow's statement to Datlow
was relevant to Sigismondi's defense at trial that Blow was the aggressor
during the altercation on August 26. § 776.012(2), Fla....
CopyPublished | Florida 6th District Court of Appeal
...3d 424, 427 (Fla. 5th DCA 2011). 5 The Montijo court reasoned that even though
4
The Florida Supreme Court would later disbar him. See Fla. Bar v.
Brodersen, No. SC2022-1691,
2024 WL 3519614, at *1 (Fla. July 24, 2024).
5
See also §
776.012(2), Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2000 Fla. App. LEXIS 1051, 2000 WL 140170
...Regardless of who may have been the initial aggressor, it is absolutely clear that immediately after the confrontation began the victim took no action against the defendant who was in possession of the superior weapon. 2 The defendant was no longer in danger. Section 776.012, Florida Statutes (1997), defines the justifiable use of deadly *766 force in defense of one’s own person as follows: [A] person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself....
CopyPublished | Florida 3rd District Court of Appeal | 1993 Fla. App. LEXIS 1521, 1993 WL 30645
...and affirm. A person is justified in the use of nondeadly force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. See section 776.012, Florida Statutes (1991)....
CopyPublished | Florida 4th District Court of Appeal
...7
The Justifiable Use of Non-Deadly Force
Florida grants a right to “[i]mmun[ity] from criminal prosecution and
civil action for the [justifiable] use or threatened use of such force”
permitted by sections
776.012,
776.013, or
776.031, Florida Statutes
(2020), except in certain circumstances not applicable in this case.
§
776.032(1), Fla....
...personal property[.]” §
776.031(1),
Fla. Stat. (2020) (emphasis added).
In contrast, while not including the term “physical harm,” each of the
other inapplicable sections in the SYG statutory scheme that authorize the
use of non-deadly force—sections
776.012(1) and
776.013(1)(a)—seem to
require some threat of “physical harm” because they require another’s
“imminent use of unlawful force”—which by implication may cause
“physical harm”—before the defensive use or threat of non-deadly force is
justified. See generally §§
776.012(1),
776.013(1)(a), Fla. Stat. (2020).
Unlike sections
776.012(1) and
776.013(1)(a), section
776.031(1) does
not contain any language requiring the “imminent use of unlawful force”
by another as a prerequisite to the justifiable use or threatened use of non-
15
deadly force “to prevent or terminate” the “tortious or criminal interference
with” a person’s personal property. Compare §
776.012(1), Fla....
...The Material Facts Reveal No Basis for Stand Your
Ground Immunity
The conduct of one seeking immunity from prosecution must fall within
one of the statutory sections granting immunity. Here, it is obvious that
section 776.012(1) does not apply because the defendant did not face the
“imminent use of unlawful force.” § 776.012(1), Fla....
...7 Nor
does section
776.013 apply, because the material facts did not
demonstrate that the defendant could “reasonably believe[] that [her]
conduct [was] necessary to defend” herself against anyone’s “imminent use
of unlawful force.” §
776.013(1)(a), Fla. Stat. (2020).
7 Section
776.012(2) is also inapplicable because the defendant did not use
deadly force, nor was she facing the prospect of “imminent death or great bodily
harm” or the “imminent commission of a forcible felony.”
21
This leaves section
776.031(1), upon which the majority relies....
...the common law’s notion that physical violence is proper to oppose a risk
of actual physical harm to persons and actual physical interference with
property. The statutes authorize the use of force in defense of a person or
home to resist the “imminent use of unlawful force.” §§
776.012(1),
776.013(1)(a), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 2746, 2015 WL 806900
...ERGER, J. Eddie Aldardo Mayo, Jr. appeals his judgment and sentence for manslaughter. 1 He argues that the trial court erred in denying his dispositive pretrial motion to dismiss based on Florida’s “Stand Your Ground” law. See §§ 776.082 and 776.012(1), Fla....
...aged in an unlawful activity, namely, trespass, at the time that he acted in self-defense. In a similar case, we held that under the “Stand Your Ground” law prior to its amendment in 2014, a defendant could assert immunity from prosecution under section 776.012 2 even if he was engaged in an unlawful act at the time that he acted in self-defense....
...5th DCA Feb. 6, 2015) (reversing and. remanding for discharge on counts of second-degree murder (reduced to manslaughter) and attempted second-degree murder (reduced to aggravated battery) based on “Stand your Ground” immunity under sections
776.032 and
776.012, Florida Statutes). We are bound by our prior decision in Miles. Because the present-existing exception for a defendant’s engagement in unlawful activity did not exist under section
776.012(1), Florida Statutes, at the time that Mayo filed his motion to dismiss, and because there was competent, substantial evidence to support the trial court’s finding that Mayo acted in self-defense, we agree with Mayo that the trial c...
...State,
178 So.2d 875, 877 (Fla. 2d DCA 1965) ("Although no error was assigned in regard to the legality of appellant's sentences — nor was the matter argued — an appellate court will always consider a fundamental error that is apparent on the face of the record.”). . Section
776.012, Florida Statutes, was amended in 2014 to include an exception for individuals engaged in unlawful activity at the time that they acted in self-defense....
CopyPublished | Florida 5th District Court of Appeal | 2006 Fla. App. LEXIS 2458, 2006 WL 435803
PER CURIAM. K.W.S. appeals his adjudication of delinquency based on a single charge of battery. Because the court erred in not granting the juvenile’s motion for judgment of dismissal 1 , we reverse. Section 776.012, Florida Statutes (2004), authorizes a person to use non-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 such ot...
CopyPublished | Florida 1st District Court of Appeal | 1998 Fla. App. LEXIS 1645, 1998 WL 69131
...We therefore reverse the violation for assault and battery and remand the cause with directions to the University to vacate such violation and to strike the penalties imposed thereon. We affirm the remaining two violations. AFFIRMED in part, REVERSED in part, and REMANDED. ERVIN, BENTON and PADOVANO, JJ., concur. NOTES [1] Section 776.012, Florida Statutes (1995), provides: "A person is justified in the use of force, except deadly force, against another when and to the extent that he reasonable believes that such conduct is necessary to defend himself or another agains...
CopyPublished | Florida 1st District Court of Appeal | 10 Fla. L. Weekly 465, 1985 Fla. App. LEXIS 12504
...5th DCA 1984); State v. Barnard,
405 So.2d 210 (Fla. 5th DCA 1981). Lowery did not involve an allegation of unlawful force in the effectuation of the arrest and, therefore, we left open the question of a defendant’s right to use force in defense of his person under section
776.012....
CopyPublished | Florida 1st District Court of Appeal
...it instructed the jury that “if [Appellant] was engaged in an unlawful activity, [his]
use of deadly force was not justified if he could have reasonably and safely
avoided the use of deadly force by retreating.” This was an incorrect statement of
then-existing law. Section 776.012(1), Florida Statutes (2010) – the sole statute on
which Appellant’s self-defense claim was based – provided that “a person is
justified in the use of deadly force and does not have a duty to retreat if [h]e ....
...n Garrett v. State,
148 So. 3d 466,
471 (Fla. 1st DCA 2014), that “[t]he fact that [the defendant] was a convicted felon
in unlawful possession of a firearm did not apply to the jury’s consideration of
whether [he] had a duty to retreat under section
776.012(1).” Accord Dorsey v.
State, 149 So....
...cited decisions at the time of trial, and we also recognize that the Dorsey opinion
relied on by the trial court to craft the jury instructions did hold that the common
2
2014) (en banc) (holding that the defense provided in section 776.012(1) is
available to persons engaged in an unlawful activity and explaining that “[t]he
addition of the words ‘and does not have a duty to retreat’ to section 776.012 had
the effect of abrogating the common law duty to retreat before using deadly force
outside the home under the circumstances indicated therein”); Little v....
...State,
111
So. 3d 214, 219-22 (Fla. 2d DCA 2013) (holding that a defendant engaged in an
unlawful activity when he or she uses force cannot obtain immunity from
prosecution based on section
776.013(3), but he or she can obtain immunity based
on section
776.012(1))....
...3d 521 (Fla. 4th DCA
2011) (Dorsey I); accord Morgan v. State,
127 So. 3d 708, 715-17 (Fla. 5th DCA
2013); Darling v. State,
81 So. 3d 575, 578-79 (Fla. 3d DCA 2012). However, the
focus of Dorsey I was on the defense provided by section
776.013(3), not section
776.012(1)....
...Moreover, in a subsequent
opinion in the Dorsey case, the Fourth District held that it was fundamental error to
instruct the jury that a defendant engaged in an unlawful activity had a duty to
retreat when the defendant’s self-defense claim was based on section 776.012(1).
See Dorsey II, 149 So....
...his duty to retreat or not turned on whether he was engaged in an unlawful activity.
However, as the cases cited above now make clear, it was irrelevant whether
Appellant was engaged in an unlawful activity when he used the force at issue
because his self-defense claim was based upon section
776.012(1), not section
776.013(3)....
CopyPublished | Supreme Court of Florida
...Stat., and many statutes within
Chapter 776 address the justifiable use of deadly force, however, §
782.02, Fla.
Stat., does not address the concept of stand-your-ground/no duty to retreat.
Additionally, §
776.013(1), Fla. Stat., covers the situation where the defendant was
in a dwelling and had the right to be there while §
776.012(1), and §
776.031(2),
Fla....
...ed by [him] [her].
Give the elements of the applicable felony that defendant alleges victim
attempted to commit, but omit any reference to burden of proof. See Montijo v.
State,
61 So. 3d 424 (Fla. 5th DCA 2011).
Give if applicable. §§
776.012(2),
776.031(2), Fla....
...make an arrest, then a
person is justified in the [use] [or] [threatened use] of reasonable force to
defend [himself] [herself] (or another), but only to the extent [he] [she]
reasonably believes such [force] [or] [threat of force] is necessary. See
§ 776.012, Fla....
...State,
463 So. 2d 372 (Fla. 5th DCA 1985).
Read in all cases.
At the end of the last sentence of the paragraph below, there are two sets of
brackets. The words within the first set of brackets should be read if the jury is
instructed on either §
776.012(2), Fla....
...[use] [or] [threatened] of non-deadly force. “Non-deadly” force means force
not likely to cause death or great bodily harm.
Definition.
“Non-deadly” force means force not likely to cause death or great bodily
harm.
In defense of person. §§
776.012(1),
776.013(1), Fla....
...However, if an officer uses excessive force to make an arrest, then a
person is justified in the [use] [or] [threatened use] of reasonable force to
defend [himself] [herself] [another], but only to the extent [he] [she]
reasonably believes such force is necessary. See § 776.012, Fla....
CopyPublished | Florida 1st District Court of Appeal | 2015 Fla. App. LEXIS 19106, 2015 WL 9287023
...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 place .where he or she has a right to be. §
776.012(2), Fla. Stat. (2014). Section
776.032 provides further that a person who uses deadly force as permitted in section
776.012 is justified in such conduct and is immune from criminal prosecution so long as the person against whom the force was used was not a law enforcement officer....
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Jan 19, 2023
...the government chooses not to retry
Count 1.
USCA11 Case: 19-10332 Document: 302-1 Date Filed: 12/02/2024 Page: 118 of 142
118 Opinion of the Court 19-10332
Stat. § 776.012(2) (2021)....
CopyPublished | Supreme Court of Florida
...amendments to both instructions 3.6(f) and 3.6(g). In its report, the Committee
explains that
[a] question arises as to whether this extension [of the “castle
doctrine”] applies if the person were engaged in criminal activity.
Notably, §§
776.012(2) and
776.031(2), Fla....
...ly force, however, §
782.02, Fla. Stat.,
does not address the concept of stand-your-ground/no duty to retreat. Additionally,
§
776.013(1), Fla. Stat., covers the situation where the defendant was in a dwelling
and had the right to be there while §§
776.012(1), and
776.031(2), Fla....
...Stat., and many statutes within Chapter 776 address the
justifiable use of deadly force, however, §
782.02, Fla. Stat., does not address the
concept of stand-your-ground/no duty to retreat. Additionally, §
776.013(1), Fla.
Stat., covers the situation where the defendant was in a dwelling and had the right
to be there while §
776.012(1), and §
776.031(2), Fla....
...in which [he] [she] was present.
Give the elements of the applicable felony that defendant alleges victim
attempted to commit, but omit any reference to burden of proof. See Montijo v.
State,
61 So. 3d 424 (Fla. 5th DCA 2011).
Give if applicable. §§
776.012(2),
776.031(2), Fla....
...make an arrest, then a
person is justified in the [use] [or] [threatened use] of reasonable force to
defend [himself] [herself] (or another), but only to the extent [he] [she]
reasonably believes such [force] [or] [threat of force] is necessary. See
§ 776.012, Fla....
...State,
463 So. 2d 372 (Fla. 5th DCA 1985).
Read in all cases.
At the end of the last sentence of the paragraph below, there are two sets of
brackets. The words within the first set of brackets should be read if the jury is
instructed on either §
776.012(2), Fla....
...“Non-deadly” force means force
not likely to cause death or great bodily harm. “Great bodily harm” means
great as distinguished from slight, trivial, minor, or moderate harm, and as
such does not include mere bruises.
In defense of person. §§
776.012(1),
776.013(1), Fla....
...However, if an officer uses excessive force to make an arrest, then a
person is justified in the [use] [or] [threatened use] of reasonable force to
defend [himself] [herself] [another], but only to the extent [he] [she]
reasonably believes such force is necessary. See § 776.012, Fla....
CopyPublished | Supreme Court of Florida
...irreconcilable fashion—opined that had section
776.032(4) applied, Love would be
entitled to immunity. The trial court noted it “cannot say, without hesitancy, that
the State proved that Tashara Love was not responding to a reasonable belief that
2. Section
776.012(2), Florida Statutes (2019), provides in part: “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...
CopyPublished | Supreme Court of Florida
...estimony and resolved all
factual disputes consistently with Deputy Peraza’s self-defense theory.
After being indicted for manslaughter with a firearm, Deputy Peraza moved
to dismiss the indictment, citing immunity from prosecution under sections
776.012(1) and 776.()32(1), Florida Statutes (2013), commonly known as Florida’s
“Stand Your Ground” law, and under section
776.05, Florida Statutes (2013).
After the evidentiary hearing, the judge made the findings set forth above and
granted...
...This Court is “without power to construe an unambiguous statute in a way
which would extend, modify, or limit, its express terms or its reasonable and
obvious implications.” Id. (emphasis omitted) (quoting Am. Bankers Life
Assurance CO. ofFla. v. Williams,
212 So. 2d 777, 778 (Fla. 1st DCA 1968)).
Section
776.012, part of the Stand Your Ground law, provides in pertinent
part that
a person is justified in the use of deadly force and does not have a
duty to retreat if:
(1) He or she reasonably believes that such force is necessary to
prevent imminent death or great bodily harm to himself or herself or
another . . . .
§
776.012(2), Fla. Stat. (2013). Section
776.032, titled “lmmunity from criminal
prosecution and civil action for justifiable use of force,” and also part of the Stand
Your Ground law, provides in relevant part that
[a] person who uses force as permitted in s.
776.012, s....
...Then, the doctrine of in
pari materia applies.”
105 So. 3d at 20 (emphasis added).
Respectfully, to suggest that the doctrine of in pari materia applies in
every case is incorrect as a matter of law. As the circuit court
correctly found in this case, because sections
776.012(1)’s and
776.032(1)’s plain language is clear and unambiguous, Caamano
“need not have gone into the doctrine of in pari materia at all.” See
English v....
...As the Second District’s analysis recognizes, given the question presented
in this case and the arguments made, some consideration of section
776.05, Fla.
Stat., is necessary in order to determine whether it creates an ambiguity not
otherwise apparent on the face of sections
776.012(1) and
776.032(1), Fla....
...e making
the arrest.” §
776.05, Fla. Stat. At the heart of the State’s argument lies the
observation that the defense recognized in this law enforcement use of force
statute, section
776.05, may overlap in some cases with the defense created in
section
776.012 (“[A] person is justified in the use of deadly force and does not
have a duty to retreat if . . . [h]e or she reasonably believes that such force is
necessary to prevent imminent death or great bodily harm to himself or herself or
another”). ln other words, there may be cases in which a person justified in the use
of deadly force under section
776.012 is also a law enforcement officer justified in
the use of force under section
776.05....
...mmune
from criminal prosecution” such that he is entitled to a pretrial immunity
determination. That immunity is addressed only in section
776.032(1), which
plainly says that the immunity is afforded to any “person who uses force as
permitted in s.
776.012.” §
776.032(1)....
CopyPublished | Florida 4th District Court of Appeal
...State,
966 So. 2d 330, 333 (Fla. 2007).
3
In 2005, the Florida Legislature enacted the Stand Your Ground law
and by statute eliminated the common law duty of an individual to
retreat before using force in self-defense. §
776.012(1), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2000 Fla. App. LEXIS 11067, 25 Fla. L. Weekly Fed. D 2083
... Florida law permits the use of deadly force only if a defendant “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another or to prevent the imminent commission of a forcible felony.” § 776.012, Fla....
CopyPublished | Florida 4th District Court of Appeal | 2017 Fla. App. LEXIS 12472, 2017 WL 3730352
...ifle
which appeared to be a firearm; (2) failed to obey officers’ commands to
drop the weapon; and (3) pointed the weapon towards officers before being
shot. The court found that the officer was entitled to immunity from
prosecution under sections
776.012(1) and
776.032(1), Florida Statutes
(2013), more commonly known as Florida’s “Stand Your Ground” law.
The state argues that, as held in State v....
...others, prompting the officer
to shoot at the man, resulting in the man’s death.
b. The Circuit Court’s Conclusions of Law
In the circuit court’s conclusions of law, the court began by reciting the
statutes at issue, that is, sections
776.012(1),
776.032(1), and
776.05(1),
Florida Statutes (2013).
In 2013, section
776.012(1) provided:
[A] person is justified in the use of deadly force and does
not have a duty to retreat if:
(1) He or she reasonably believes that 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[.]
§
776.012(1), Fla. Stat. (2013).
Section
776.032(1) provided, in pertinent part:
A person who uses force as permitted in s.
776.012 ....
...le
making the arrest[.]
§
776.05(1), Fla. Stat. (2013).
Having reviewed the foregoing statutes, the circuit court then
addressed the state’s argument that the officer could not avail himself of
Stand Your Ground immunity under sections
776.012(1) and
776.032(1)
because, as a law enforcement officer, his use of force was governed solely
by section
776.05(1)....
...ly
to the public at large.
Caamano,
105 So. 3d at 22.
The circuit court rejected the state’s argument and concluded, as a
matter of law, that the officer in the instant case was eligible to seek Stand
Your Ground immunity under sections
776.012(1) and
776.032(1)....
...present case as such limitation only applies, if at all, to cases
where the officer is in the process of making an arrest.
Therefore this Court finds that the [officer] herein is eligible to
seek immunity under Florida Statute
776.012 and
776.032 in
the instant case.
(emphasis added; footnote omitted).
Second, the circuit court “urge[d] the 4th DCA to reexamine the legal
holding in Caamano.” The circuit court observed that Caamano applied
the rule of statut...
...2d
408[, 410] (Fla. 2004). However, if the language is unclear or
ambiguous, then the Court applies rules of statutory
construction to discern legislative intent. See Bautista [v.
State,
863 So. 2d 1180, 1185 (Fla. 2003)].
Florida Statute
776.012(1) reads: “A person is justified in
the use of deadly force ....
... through
[the] use of statutory construction doctrines, maxims and
tools.
(footnote omitted).
Having concluded, as a matter of law, that the officer in the instant case
was eligible to seek Stand Your Ground immunity under sections
776.012(1) and
776.032(1), the circuit court applied its findings of fact to
conclude that the officer was entitled to Stand Your Ground immunity:
The last question to address is whether the defendant’s use
of force in this case was objectively unreasonable....
...orce in the instant
case was objectively reasonable.
....
This Court therefore finds that the [officer] is entitled to
immunity under F.S.
776.032 as a result of the justifiable use
of deadly force pursuant to F.S.
776.012 notwithstanding his
occupation as a law enforcement officer.
(footnote omitted).
2. The Parties’ Arguments on Appeal
a. The State’s Arguments
The state primarily argues in this appeal that the circuit court
improperly granted immunity as a matter of law to the officer pursuant to
sections
776.012(1) and
776.032(1).
According to the state, because the officer was attempting an arrest,
Caamano is factually on point and, pursuant to Caamano, the officer was
not permitted to claim immunity pursuant to sections
776.012(1) and
776.032(1), which applies generally to all persons using force.
Instead, the state argues, because the officer was attempting an arrest,
he was required to proceed pursuant to the more specific section
776.05(1), which applies to l...
...is for the jury not the judge, the order granting immunity must
be reversed and this case remanded for a jury trial.
b. The Officer’s Arguments
In response, the officer argues the circuit court properly granted
immunity to him pursuant to sections
776.012(1) and
776.032(1).
Specifically, the officer argues that based on the circuit court’s findings of
fact that he was responding to an emergency and not making an arrest,
he was entitled to absolute immunity under section
776.032(1), and not
merely an affirmative defense at trial under section
776.05(1)....
...t’s factual findings are entitled
to deference and must be supported by competent substantial evidence.
. . . The trial court’s legal conclusions are reviewed de novo.”). To the
extent we review the circuit court’s interpretation of sections
776.012(1),
776.032(1), and
776.05(1), our review also is de novo....
...at bodily
harm to himself or herself or another or to prevent the imminent
commission of a forcible felony, is not limited to invoking a defense under
section
776.05(1), but is also permitted to seek immunity from criminal
prosecution under sections
776.012(1) and
776.032(1).
In reaching our holding, we agree with the circuit court that sections
776.012(1)’s and
776.032(1)’s plain language dictates this conclusion. In
2013, section
776.012(1) provided:
[A] person is justified in the use of deadly force and does
not have a duty to retreat if:
(1) He or she reasonably believes that 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[.]
§
776.012(1), Fla. Stat. (2013) (emphasis added).
13
Section
776.032(1) provided, in pertinent part:
A person who uses force as permitted in s.
776.012 ....
...Stat. (2013).
As the circuit court found, “There is nothing in the term ‘a person’ that
is unclear or ambiguous. A law enforcement officer under any reasonable
understanding of our language qualifies as ‘a person.’” Because sections
776.012(1)’s and
776.032(1)’s plain language is clear and unambiguous,
the officer in this case was permitted to seek immunity from criminal
prosecution under sections
776.012(1) and
776.032(1)....
...Then, the doctrine of in pari materia applies.”
105
So. 3d at 20 (emphasis added). Respectfully, to suggest that the doctrine
of in pari materia applies in every case is incorrect as a matter of law. As
the circuit court correctly found in this case, because sections
776.012(1)’s
and
776.032(1)’s plain language is clear and unambiguous, Caamano
“need not have gone into the doctrine of in pari materia at all.” See English
v....
...language or employ principles of statutory construction to determine
legislative intent.”) (emphasis added).
Having concluded, as a matter of law, that the officer in the instant case
was eligible to seek Stand Your Ground immunity under sections
776.012
and
776.032, we also conclude, based on the circuit court’s findings of
fact, that the officer was entitled to Stand Your Ground immunity....
...r own.
14
We also agree with the officer’s argument in response to the state’s
secondary argument on appeal. That is, as the officer argues, a court may
not deny a motion seeking immunity under sections
776.012(1) and
776.032(1) simply because factual disputes may exist....
...l order granting
the officer’s amended motion to dismiss the indictment against him for
manslaughter with a firearm. Specifically, we affirm the circuit court’s
conclusion that the officer was entitled to immunity from prosecution
under sections
776.012(1) and
776.032(1), Florida Statutes (2013), more
commonly known as Florida’s “Stand Your Ground” law....
...HIMSELF OR HERSELF OR ANOTHER OR TO PREVENT THE
IMMINENT COMMISSION OF A FORCIBLE FELONY, IS
LIMITED TO INVOKING A DEFENSE UNDER SECTION
776.05(1), OR IS ALSO PERMITTED TO SEEK IMMUNITY
FROM CRIMINAL PROSECUTION UNDER SECTIONS
776.012(1) AND
776.032(1), FLORIDA STATUTES (2013),
MORE COMMONLY KNOWN AS FLORIDA’S “STAND YOUR
GROUND” LAW.
Affirmed; conflict certified; question of great public importance certified.
GROSS and KUNTZ, JJ., concur....
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Aug 11, 2021
...In the first appeal, Davis argued that the district court
had erred in dismissing his arrest claims. A panel of this Court re-
manded the case for the district court to address in the first instance
Davis’ argument that, in light of Florida’s “Stand Your Ground”
law, Fla. Stat. §§
776.012(2),
776.032, the officers lacked actual prob-
able cause to arrest him because his use of deadly force was legally
justified....
...The complaint states that
Davis “fired a second time in self-defense.” That necessarily means
that Davis is alleging that he fired the second shot deliberately, al-
legedly with the intent to stop Timmy from seriously wounding or
killing him. See Fla. Stat. § 776.012(2) (providing that a person’s
use of deadly force is justified if that person reasonably believes his
deliberate action is “necessary to prevent imminent death or great
bodily harm to himself”)....
...justified in using or threat-
ening 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 . . . .” Fla. Stat. § 776.012(2).
That person is also “immune from criminal prosecution” for the
use of such deadly force....
...28/2023 Page: 40 of 56
40 Opinion of the Court 20-11994
believed that using deadly force was “necessary to prevent immi-
nent death or great bodily harm to himself.” Fla. Stat. § 776.012(2).
The issue is not whether a person in Davis’ position could have
reasonably believed that deadly force was called for as retribution
or vengeance because of what his son had already done to him.
The doctrine of self-defense does not authorize lethal payback....
...the
shooting itself, instead of the earlier arguing and fighting. And it
never specifies that she saw Timmy try to inflict serious injury or
death on Davis. Given Florida law’s imminence requirement, see
Fla. Stat. § 776.012(2), what happened just before the shooting is
what matters to the self-defense question.
There is a general allegation in the complaint that the daugh-
ter’s interview with detectives “only served to cor...
...defense when he killed Timmy. Officers could reasonably believe
that the act of taking off one’s shirt does not amount to imminently
inflicting death or great bodily harm, and therefore does not negate
probable cause. See Fla. Stat. § 776.012(2).
c....
...Her statement would in no
way have prevented an officer from reasonably concluding that
there was a substantial chance that shooting Timmy to death was
not “necessary to prevent imminent death or great bodily harm to”
Davis. See Wesby,
583 U.S. at 57; Fla. Stat. §
776.012(2).
The complaint also alleges that in her later interview Ms.
Davis told the officers that after she went downstairs and saw
Timmy on the ground after he had been shot, “he was apologizing
to his father, telling Mr....
CopyPublished | Florida 4th District Court of Appeal | 2014 WL 3928417, 2014 Fla. App. LEXIS 12432
...ld
have increased his own danger to retreat, then his use of force
likely to cause death or great bodily harm was justifiable.
On appeal, Defendant now argues that the trial court erred in giving
this jury instruction and that section 776.012(1), a part of the Stand Your
Ground law, was applicable to his situation....
...is not necessarily applicable when Florida’s Stand Your Ground law
applies. See Little v. State,
111 So. 3d 214, 220 (Fla. 2d DCA 2013) (noting
the Stand Your Ground law “eliminated the common law duty to retreat
for persons justifiably using deadly force under either section
776.012(1)
or
776.013”).
Pursuant to section
776.012(1),2 Defendant was entitled to the
2 Section
776.012(1), Florida Statutes (2010), provides:
A person is justified in using 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
3
protection of the Stand Your Ground law. This is true because section
776.012(1), which does not include language on “unlawful activity,” is
separate from section
776.013(3).3 See State v. Wonder,
128 So. 3d 867,
869 (Fla. 4th DCA 2013) (“The defendant has maintained all along that
such a determination was unnecessary because the defense motion relied
upon section
776.012 and not
776.013. The exception for a defendant’s
engagement in ‘unlawful activity’ does not exist under section
776.012.
We agree with the defendant.”)....
...(1) He or she reasonably believes that 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; . . . .
3 Under the amendment to section 776.012, which went into effect on June 20,
2014, it does not appear Defendant would get the benefit of the Stand Your
Ground law....
CopyPublished | Florida 1st District Court of Appeal
...it instructed the jury that “if [Appellant] was engaged in an unlawful activity, [his]
use of deadly force was not justified if he could have reasonably and safely
avoided the use of deadly force by retreating.” This was an incorrect statement of
then-existing law. Section 776.012(1), Florida Statutes (2010) – the sole statute on
which Appellant’s self-defense claim was based – provided that “a person is
justified in the use of deadly force and does not have a duty to retreat if [h]e ....
...n Garrett v. State,
148 So. 3d 466,
471 (Fla. 1st DCA 2014), that “[t]he fact that [the defendant] was a convicted felon
in unlawful possession of a firearm did not apply to the jury’s consideration of
whether [he] had a duty to retreat under section
776.012(1).” Accord Dorsey v.
State, 149 So....
...icted felon (count II),
and carrying a concealed firearm (count III).
2
(Fla. 1st DCA 2014); 2 see also Hill v. State,
143 So. 3d 981, 984 (Fla. 4th DCA
2014) (en banc) (holding that the defense provided in section
776.012(1) is
available to persons engaged in an unlawful activity and explaining that “[t]he
addition of the words ‘and does not have a duty to retreat’ to section
776.012 had
the effect of abrogating the common law duty to retreat before using deadly force
outside the home under the circumstances indicated therein”); Little v....
...State,
111
So. 3d 214, 219-22 (Fla. 2d DCA 2013) (holding that a defendant engaged in an
unlawful activity when he or she uses force cannot obtain immunity from
prosecution based on section
776.013(3), but he or she can obtain immunity based
on section
776.012(1))....
...3d 521 (Fla. 4th DCA
2011) (Dorsey I); accord Morgan v. State,
127 So. 3d 708, 715-17 (Fla. 5th DCA
2013); Darling v. State,
81 So. 3d 575, 578-79 (Fla. 3d DCA 2012). However, the
focus of Dorsey I was on the defense provided by section
776.013(3), not section
776.012(1)....
...Moreover, in a subsequent
opinion in the Dorsey case, the Fourth District held that it was fundamental error to
instruct the jury that a defendant engaged in an unlawful activity had a duty to
retreat when the defendant’s self-defense claim was based on section 776.012(1).
See Dorsey II, 149 So....
...his duty to retreat or not turned on whether he was engaged in an unlawful activity.
However, as the cases cited above now make clear, it was irrelevant whether
Appellant was engaged in an unlawful activity when he used the force at issue
because his self-defense claim was based upon section
776.012(1), not section
776.013(3)....
CopyPublished | Florida 1st District Court of Appeal
...He claimed that he was immune from prosecution
because he was making a citizen’s arrest, the victims resisted him,
and were trying to prevent escape, and, in the alternative, because
he reasonably believed that using deadly force was necessary to
prevent imminent death or great bodily harm to himself under
section 776.012(2), Florida Statutes.
At the evidentiary hearing, the State and defense counsel
presented testimony from the victims, the defendant,
eyewitnesses, police officers, and experts....
...bodily
harm or death.
To raise a prima facie claim of self-defense immunity under
section
776.032(1), Raulerson had to show that the elements of
justifiable force were met. See Edwards v. State,
351 So. 3d 1142,
1148–49 (Fla. 1st DCA 2022). Section
776.012(2), Florida Statutes
(2019), provides:
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 de...
...8
In reviewing Raulerson’s claim of using deadly force in self-
defense, the trial court had to determine whether a reasonable
person in Raulerson’s position would have used the same force as
Raulerson. See § 776.012, Fla....
...confining, abducting, imprisoning, or restraining another person
without lawful authority and against her or his will.”). And if
Raulerson were committing the crime of false imprisonment, his
use of deadly force would not have been justified under section
776.012(2).
9
The trial court found that Raulerson then confronted the two
unarmed individuals, pointed the AR-15 pistol at them, ordered
them out of their own car, and instructed them to lie on the grou...
...My answer is a firm no,
as I explain next.
II
A
A person has immunity when his use of force is legally
justified. See §
776.032(1), Fla. Stat. (providing immunity “from
criminal prosecution” to a person “who uses force as permitted in
s.
776.012, s.
776.013, or s.
776.031,” except when force is used
against a law enforcement officer). Under section
776.012(2),
Florida Statutes,
[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 bo...
...1(1), Fla. Stat. Moreover,
a person “engaged in a criminal activity” or located “in a place
where he [] [does not have] a right to be” has “a duty to retreat”
rather than an entitlement to stand his ground and face the threat
with force. § 776.012(2), Fla....
CopyPublished | Florida 2nd District Court of Appeal
...Moody’s election as Attorney General.
encounter, Mr. James had been shot dead by Mr. Dooley. We are called upon to
decide whether the jury in Mr. Dooley's trial was given a fundamentally erroneous
instruction about Mr. Dooley's "Stand Your Ground" defense under sections
776.012
and
776.013(3), Florida Statutes (2010)....
...ida Statutes
(2010), and one count of openly displaying a firearm under section
790.053. Mr.
Dooley asserted a claim of immunity pursuant to section
776.032(1), Florida Statutes
(2010) ("A person who uses or threatens to use force as permitted in s.
776.012, s.
776.013, or s....
...before the jury.
With minor discussion, both the State and the defense agreed to utilize
Standard Jury Instruction 3.6(f) to govern Mr. Dooley's Justifiable Use of Deadly Force
defense. That instruction, as given, amalgamated sections
776.012(1) and
776.013(3)
together into a single instruction....
...State's closing statement—his defense was improperly curtailed by the issue of whether
Mr. Dooley had been engaged in "unlawful activity." While that limitation may pertain to
section
776.013(3), Mr. Dooley argues, there was no such limitation on the defense
available under section
776.012(1)....
...at 298 (quoting State v. Delva,
575 So. 2d 643, 644-45 (Fla. 1991)).
The standard instruction was fundamentally erroneous in this case. The
confusion this instruction created can be discerned by first examining how the versions
of sections
776.012(1) and
776.013(3) in effect at the time of this incident interacted
with each other....
...Both sections are part of the same defense; but they held subtle—and
important—distinguishing characteristics, a point we explained at length in Little v.
State,
111 So. 3d 214 (Fla. 2d DCA 2013):
We conclude that the plain language of sections
776.012,
776.013, and
776.032 can be understood as
granting immunity to a person who qualifies under either
section
776.012(1) or
776.013(3)....
...engaged in an unlawful activity and (2) attacked in any place
outside the "castle" as long as (3) he or she has a right to be
there. A person who does not meet these three
requirements would look to section 776.012(1) to determine
whether the use of deadly force was justified....
...presumption in section
776.013(1) does not apply if the
person was engaged in an unlawful activity. See §
776.013(2)(c).
-9-
The requirements under sections
776.012(1) and
776.013(3) are not identical....
...A person proceeding under
section
776.013(3) would have to prove that he or she
reasonably believed the use of deadly force was "necessary
. . . to prevent death or great bodily harm . . . or to prevent
the commission of a forcible felony." Under section
776.012(1), a person would have to prove that he or she
reasonably believed the use of deadly force was "necessary
to prevent imminent death or great bodily harm ....
...im immunity
under section
776.032(1) based on the use of force as
permitted in section
776.013(3). But section
776.013(3)
provides only one means of obtaining immunity under
section
776.032(1). Section
776.012(1) provides another
means of obtaining immunity for individuals who would not
qualify for immunity under section
776.013(3). And section
776.032(1) expressly provides for immunity based on the
use of force as permitted in section
776.012.
Id....
...We concluded in Little that while the defendant's status of being a felon in
illegal possession of a firearm may have precluded him from availing himself of the
protection of section
776.013(3) in his second-degree murder trial, he could still seek
immunity based on section
776.012(1). Id. at 222.
The district courts of appeal have universally agreed on this point: what
distinguishes
776.012(1) from
776.013(3)—in particular, whether the defendant had
been engaged in "unlawful activity" at the time of the threat—impacts the viability of a
Stand Your Ground defense. See generally Andujar-Ruiz v. State,
205 So. 3d 803,
806-07 (Fla. 2d DCA 2016) ("[B]ecause [Appellant] was entitled to raise a defense
under section
776.012(1), the trial court's instruction that he had a duty to retreat if he
was engaged in unlawful activity effectively deprived [Appellant] of his sole defense and
constituted fundamental error."); Little,
111 So. 3d at 219, 221 (concluding that immunity
- 10 -
applies to a person who qualifies under either section
776.012(1) or
776.013(3),
therefore the defendant's status as a felon in illegal possession of a firearm did not
preclude a claim of immunity under section
776.012(1) and the trial court erred in
denying motion to dismiss on the basis that the defendant was precluded from seeking
immunity because he was engaged in an unlawful activity); McGriff v....
...instructed the jury that "if [Appellant] was engaged in an unlawful activity, [his] use of
deadly force was not justified if he could have reasonably and safely avoided the use of
deadly force by retreating" because it was an "incorrect statement of then-existing law"
where section 776.012(1) does not provide for a duty to retreat); Miles v....
...5th DCA 2015) (concluding that the trial court erred in determining
that the defendant was not entitled to immunity because he was engaged in unlawful
activity because "under the prior Stand Your Ground law, a defendant could assert
immunity under section 776.012 even if he or she was engaged in an unlawful act at the
time"); Dorsey v....
...3d 144, 147 (Fla. 4th DCA 2014) (concluding that the
instruction regarding the defendant's duty to retreat was fundamental error because
reference to the defendant's duty to retreat was unnecessary as the defendant did not
have a duty to retreat under section
776.012(1)); Rios v. State,
143 So. 3d 1167, 1170
(Fla. 4th DCA 2014) (holding that the trial court instructing the jury on duty to retreat
was fundamental error because the defendant was entitled to protection of "Stand Your
Ground law" pursuant to section
776.012(1) and the "jury instruction, which was not
necessary because Defendant did not have a duty to retreat under Florida's Stand Your
Ground law, effectively eliminated Defendant's sole affirmative defense").
- 11 -
The problem with the instruction in the case before us is that there was
nothing whatsoever to guide the jury through the distinctions between sections
776.012(1) and
776.013(3)—or even alert the jury that the two sections were distinct—
where both parts of Mr....
...may or may not think about the existence of meaningful distinctions between the
statutes, we cannot doubt that the legislature intended them to be independent
justifications for the use of deadly force."). There was no direction as to how the
differing elements of sections
776.012(1) and
776.013(3) interacted for purposes of a
Stand Your Ground defense. So one would have read this instruction—in which section
776.013(3)'s "unlawful activity" qualification appears twice in separate paragraphs
immediately following section
776.012(1)'s imminent threat instruction—as a singular,
unitary set of elements.5 Certainly, it appears that was how the State understood the
instruction in presenting closing arguments to the jury.
4Neither
the State nor Mr....
...would lead one to
conclude that Mr. Dooley's right to stand his ground "and meet force with force" was, in
all instances, predicated on whether he had been engaged in unlawful activity. And that
was simply not true under the applicable version of section 776.012(1).6 See Andujar-
Ruiz, 205 So....
...That duty was effectively supplanted by
the Stand Your Ground law. See Kumar v. Patel,
227 So. 3d 557, 559 (Fla. 2017) ("The
Stand Your Ground law in Florida eliminates the common law duty to retreat before
using force in self-defense . . . .").
6Section
776.012 was amended, effective June 20, 2014, so that that
section would, henceforth, apply only to "[a] person ....
CopyPublished | Florida 1st District Court of Appeal | 1992 Fla. App. LEXIS 4643, 1992 WL 81437
...The use of force likely to cause death or great bodily harm is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to himself, while resisting any attempt to commit burglary of a dwelling upon a dwelling house occupied by him. In comparison, section 776.012, Florida Statutes, provides that one is justified in the use of deadly force only "if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another or prevent the imminent com...
CopyPublished | Florida 2nd District Court of Appeal
...rants immunity from
criminal prosecution and civil action to those who use force justifiably in self-defense.
Section
776.032 was amended effective June 17, 2014, to provide immunity to those
who use or threaten to use force as permitted in sections
776.012,
776.013, or
776.031.
Ch....
...Collectively, the amendments are called
the Stand Your Ground Law.
-2-
Dooley contends that the instruction and the State's argument were
erroneous because at the time of the offense in 2010 and at the time of trial in 2012,
sections
776.032(1) and
776.012, Florida Statutes (2010), did not condition stand your
ground immunity on whether the defendant was engaged in unlawful activity. Moreover,
on April 10, 2013, months before appellate counsel filed the initial brief on December
16, 2013, this court held that sections
776.032(1) and
776.012(1) permit a person
engaged in unlawful activity to claim stand your ground immunity. Little v. State,
111
So. 3d 214, 221-22 (Fla. 2d DCA 2013) (holding that Little's status as a felon in illegal
possession of a firearm did not preclude his claim of immunity under section
776.012(1)).2 Dooley argues that the erroneous instruction negated his defense and if
this issue had been brought to this court's attention, the result of his appeal would have
been different.
The State concedes that Dooley'...
CopyPublished | Florida 1st District Court of Appeal | 2014 WL 1612649, 2014 Fla. App. LEXIS 5853
...Petitioner’s pre-trial motion sought the statutory immunity provided for in section
776.032(1), Florida Statutes, which provides in pertinent part:
776.032 Immunity from criminal prosecution and civil action for justifiable use of force.— (1) A person who uses force as permitted in s.
776.012, s....
...the defendant, (emphasis added). As the first line of the statute clearly sets out, there are three avenues by which a defendant’s use of force may qualify for the statutory immunity from prosecution: that his or her use of force was permitted by section
776.012; by section
776.013; or by section
776.031....
...776.032(1) based on his use of force as permitted in section
776.013(3), Florida Statutes. Whether constrained by the facts or other strategic considerations, he did not allege entitlement to immunity due to his use of force as authorized by either section
776.012 or
776.031....
...Hill,
95 So.3d 434 (Fla. 4th DCA 2012). While not raised by Petitioner in this Court or the circuit court proceedings, we note that statutory immunity under section
776.032(1), Florida Statutes, based *1162 on the defensive use of force as permitted in sections
776.012(1) and
776.031, is potentially available even to a person engaged in an unlawful activity at the time....
...See State v. Wonder,
128 So.3d 867 (Fla. 4th DCA 2013); Little v. State,
111 So.3d 214 (Fla. 2d DCA 2013). In order to sufficiently raise a claim for immunity under section
776.032(1), the defendant must identify the particular statutory basis or avenue (section
776.012;
776.013;
776.031; or any combination thereof) upon which he or she relies to justify the force used....
...and Your Ground law.” Committee Substitute for Committee Substitute for Senate Bill No. 436 (2005) was adopted by the Florida Legislature and published in Chapter 2005-27, Laws of Florida. The bill also created section
776.013 and amended sections
776.012 and
776.031, Florida Statutes....
CopyPublished | Florida 4th District Court of Appeal
...t three officers
who were detaining him following a Baker Act 1 referral. Defendant
asserted immunity under the Stand Your Ground statute for using force
“necessary to prevent imminent death or great bodily harm” and moved to
dismiss the case. §§
776.012(2),
776.032, Fla....
...convincing evidence that the officers had a right to take Defendant into
custody under the Baker Act in the first place and dismissed the case.
This appeal followed.
We employ a mixed standard of review when examining a motion to
dismiss based on sections
776.012 and
776.032....
...We agree.
2
Generally, Florida law confers immunity from prosecution, without the
obligation to retreat, on persons who use deadly force if reasonably
believing such force is “necessary to prevent imminent death or great
bodily harm.” §
776.012(2), Fla. Stat. (2021); see also §
776.032(1) Fla.
Stat. (2021). Florida’s Stand Your Ground statute states:
A person who uses or threatens to use force as permitted in s.
776.012, s....
CopyPublished | Florida 6th District Court of Appeal
...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.’” Jackson v. State,
253 So. 3d 738, 740 (Fla. 1st
DCA 2018) (citing Fla. Stat. §
776.012(2))....
...of death or great bodily harm at the hands of victim, you may consider
this fact in determining whether the actions of (defendant) were those
of a reasonable person.
8
This portion of the instruction is based on sections
776.012(2) and
776.031(2), Florida Statutes (2014)....
...te, it is useful to set forth the applicable law
concerning the justifiable use of deadly force. The Florida Statutes contain multiple
provisions concerning the use of deadly force in self-defense, three of which are
relevant to this case. First, Section 776.012, Florida Statutes, entitled “Use or
threatened use of force in defense of person,” provides in pertinent part:
A person is justified in using or threatening to use deadly force if he or
she reasonably believes that u...
...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.
24
§ 776.012(2), Fla....
...him or her
or upon or in any dwelling house in which such person shall be.
§
782.02, Fla. Stat. (1997).
Each of these statutes provides a separate possible legal basis upon which the
use of deadly force may be justified. Both sections
776.012(2) and
776.031(2) apply
when a person “reasonably believes” that certain circumstances are present. In the
case of section
776.012(2), the person must reasonably believe “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...
...Gonzalez’s counsel regarding what applicable felony Gonzalez asserted that Zuniga
was attempting to commit against Gonzalez. However, the commission of a felony
against Gonzalez was not the only circumstance which could have justified his use
of deadly force. As explained above, section 776.012(2), Florida Statutes, provides
that “[a] person is justified in using or threatening to use deadly force if he or she
27
reasonably believes that using or threatening to use such force...
CopyPublished | Florida 3rd District Court of Appeal | 2008 WL 1733282
...By statute, a "person is justified in the use of deadly force only if he or she reasonably believes that 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." § 776.012, Fla....
CopyPublished | District Court of Appeal of Florida
(citing §
776.032(1), Fla. Stat. (2017)); see also §
776.012(2), Fla. Stat. (2017). Under the statute, a criminal
