Sunday, April 9, 2017

Important Changes to Florida's Stand Your Ground Law on the Horizon

Florida's "Stand Your Ground" laws justify the use of deadly or non-deadly force, as the circumstances may warrant, to defend against the imminent and unlawful attack of another.  Under its provisions, which are codified in Florida Statutes sections 776.012, 776.013, and 776.032, a person who is justified in the use of force has no duty to retreat, may stand his or her ground, meet force with force, and is immune from both civil and criminal liability for having done so.  As a St. Petersburg criminal defense attorney, I am often asked by prospective clients, charged with crimes involving the use of force or violence, whether a pretrial "stand your ground immunity motion" should be filed and litigated.   The answer, is "it depends".  

The issue of immunity is raised by filing a pretrial motion to dismiss under Florida Rule of Criminal Procedure 3.191(b)(for more detailed reading on the applicable law, see The Kilfin Law Firm, P.C.'s blog post entitled "What is a Stand Your Ground Immunity Motion?").  Unlike the more common (c)(4) motion to dismiss, the court cannot deny it simply because there are issues of fact.  The court must function as the fact finder in stand your ground immunity hearings, and must then apply the law to those facts.  

As you are probably aware, the state (or government) bears the burden of proof in any criminal case, whether it involves driving without a valid license or first degree murder. The state's burden of proof is "beyond a reasonable doubt", which is the highest burden of proof in the American legal system. There is, however, both a caveat and an exception to this fundamental legal principle. 

The caveat is what is called an "affirmative defense".  In many criminal trials, the defense to be employed is simply that the state has failed to meet its burden of proof.  In a DUI refusal case, for example, the defense would (in all likelihood) argue that the accused person's driving pattern, which served to justify the initial stop, was not indicative of impairment, the person's less than perfect field sobriety test performance is attributable to factors other than alcohol consumption (such as back pain, knee pain, or nervousness), and that his or her refusal to blow was not based on a "consciousness of guilt". Given the totality of the circumstances, the argument would go, the state has not proven impairment beyond a reasonable doubt, and you (the jury) should therefore find the defendant not guilty.  In other instances, however, the accused person will raise, through his or her criminal defense lawyer, an affirmative defense.  Florida recognizes a number of affirmative defenses, including insanity, alibi, entrapment, and the justifiable use of force.  Under these circumstances, the state must first prove the elements of the crime itself.  Once that occurs (e.g. after the state has presented its case-in-chief), the burden shifts to the defense to put on "prima facie" evidence in support of the applicable affirmative defense sought to be raised.  In a murder case, for example, the state would first attempt to prove that a murder occurred, and that the accused is the person who committed it. During the defense's case-in-chief, the accused would then put on evidence, typically through expert testimony, that while she committed the crime, she was insane at the time, and therefore not guilty. The defense must put on at least some evidence in support of the affirmative defense before the judge can instruct the jury on it, thereby allowing the jury to consider it in their deliberations. Once the accused puts on prima facie evidence in support of the affirmative defense, the burden of proof shifts back to the state to prove, beyond a reasonable doubt, that the affirmative defense does not apply. In our example, the state would, after first proving the elements of murder beyond a reasonable doubt, then also be required to prove that the defendant was sane at the time the crime was committed, and therefore guilty. The burden still ends up with the state and it is for that reason that the affirmative defense situation is more of a caveat than an exception. 

The exception to the tenant that the burden of proof in a criminal case is on the state exclusively (and that the accused does not have to prove or disprove anything), is found in the stand your ground immunity hearing.  Here, Florida law places the burden of proof on the accused; that is to say the accused is required to prove, by a "preponderance of the evidence", that he or she was justified in the use of force and is therefore immune from prosecution. When Florida's Stand Your Ground provisions first took effect in 2005, there was much confusion among the various District Courts of Appeal as to whether the it was the state who bore the burden of proof in an immunity hearing, or the defense. The Florida Supreme Court resolved the much of the uncertainty, holding that the trial court should decide the factual question of the applicability of statutory immunity and that the defendant has the burden of proving that immunity attaches by a preponderance of the evidence.  See State v. Dennis, 51 So.3d 456 (Fla. 2010); see also Bretherick v. State, 170 So.3d 766 (Fla. 2015). In situations where the defendant does not prove, by a preponderance of the evidence, that he or she was justified, the issue can be raised again at trial, in the form of an affirmative defense.  At trial, the state must prove the elements of the charge, and must then prove that the accused was not justified in the use of force. 

So what are the proposed changes to Florida's Stand Your Ground law?  In an April 5th, 2017 article, the Tampa Bay Times reported that the Republican-led Florida House passed SB 128 that would shift the burden of proof, in a stand your ground immunity hearing, from the defense to the state.  In other words, where the defense files a motion to dismiss based on the justified use of force, the state must prove that the accused was not justified, rather than the accused having to prove that he or she was justified.  If the State does not meet its burden, then the charge would be dismissed. If the state does meet its burden then, like the current procedural framework, the defense may raise the issue a second time before a jury. Many prosecutors, obviously, do not support SB 128 because it would, in many instances, require the state of Florida to prove its case twice: once before a judge in a pretrial hearing, and then again before a jury in a trial setting. 

According to the Times article, the House and Senate will have to pass identical bills before the law can be sent to Governor Rick Scott for signing.  The hold up, at this point, is only on the standard of proof.  The House proposes holding prosecutors to a "clear and convincing evidence" standard, whereas the Senate supports a "beyond a reasonable doubt" standard.  The Times reports that Florida Senators "will likely decide their course of action next week; they could make further changes or accept the House's language, which would send the bill to Governor Scott's desk".  While "clear and convincing" is a lesser standard of proof than "beyond a reasonable doubt", it is still appreciably higher than the defendant's "preponderance of the evidence" standard under the current state of the law. 

As stated above, I am often asked by clients, in appropriate cases, whether a stand your ground immunity motion should be filed and litigated, and the answer is not always a resounding "yes". There are some downsides.  First, assuming a burden of proof always presents challenges right out of the blocks - its called a "burden" for a reason.  Litigating these types of motions may also draw the state's attention to certain issues that may not have otherwise been apparent, which will make the state better prepared should the case be tried.  Also, the accused must usually testify if the defense's burden is to be met, which means the state now has a sworn statement that can be used to impeach the accused should the motion not be successful and he or she testifies at the ensuing trial. Under the proposed new law, the decision to not run the motion would become much harder, especially if the state must prove lack of justification beyond a reasonable doubt. 

No matter the applicable standard, a shift in the burden of proof to the other side of the courtroom would be welcomed warmly by criminal defense attorneys throughout St. Petersburg, Clearwater, Tampa, and surrounding areas.   It will present some very meaningful opportunities for those accused of crimes involving the use of force to have their charges dismissed or, at the very least, to negotiate for a more favorable disposition than may have otherwise been possible.  I will keep you updated as this progresses.

The Kilfin Law Firm, P.C. is Tampa Bay area DUI and criminal defense firm representing clients in St. Petersburg, Clearwater, Tampa, New Port Richey, Dade City, and Bradenton

Monday, November 2, 2015

Florida Sentencing Enhancements Pt. 4: 10-20-Life

Many of Florida's Sentencing Enhancements are based on a person's prior felony record and/or the date the person was released from prison or other sanction (such as probation). 10-20-Life is different. Its harsh reclassification and progressive minimum mandatory sentencing scheme applies to just about any felony offense wherein a weapon or firearm is used, regardless of the person's criminal history. 

Where the use of a weapon or firearm is not an element of the crime, and the person uses a weapon or firearm during its commission, the offense is reclassified, which increases the applicable statutory maximum.  Also, its offense level, for purposes of the sentencing guidelines, is re-ranked one point higher. This increases the minimum lawful guideline sentence the court can impose (note: 10-20-Life applies only to felonies). 

The statute then lists a number of felony offenses that will trigger the associated minimum mandatory sentences if a firearm is used in the commission of the crime, regardless of whether the use of a firearm is an element. Most of these offenses involve crimes of violence and drug trafficking. Minimum mandatory sentences are different than minimum guideline scores.  Often times, the applicable minimum mandatory will exceed the minimum guideline score and in some instances, it will exceed the statutory maximum.  In either instance, the minimum mandatory sentence trumps.

Generally speaking, actually possessing a firearm during the commission of an enumerated felony will result in a 10 year minimum mandatory sentence (there are some exceptions). Discharge of a firearm will result in a twenty year minimum mandatory sentence and discharging a firearm, where death or great bodily harm occurs, will result in a sentence that is not less than twenty five years, nor more than life. 

For more information, see our recent publication on HG.Org: Florida Sentencing Enhancements Pt. 4: 10-20-Life.



Tuesday, October 20, 2015

Leaving the Scene of an Accident - Hit and Run Offenses in Florida

The driver of any vehicle involved in a traffic crash is required by law to provide certain information where the crash results in injury to another person, death of another person, or damage to property. This includes the driver's name, address, and VIN of the vehicle he or she is driving.  If requested, the driver must also display his or her driver's license.  In cases involving injury to another, the driver is required to assist the injured person, to include transporting the person to a hospital for treatment, or making arrangements to have the person transported, upon request.  A violation of these requirements constitutes a civil infraction.  Where property damage is involved, and the driver leaves the scene of the accident without complying with the aforementioned requirements, he or she is guilty of a second degree misdemeanor.  If another person is injured, a driver who leaves the scene of the accident without complying with the aforementioned requirements is guilty of a third degree felony.  If death results, the driver is guilty of a first degree felony.  St. Petersburg DUI and criminal defense attorney Donald J. Kilfin has handled numerous leaving the scene of an accident (hit & run) offenses as a Pinellas county state prosecutor and Tampa Bay area criminal defense attorney. 

For more information on these types of charges, the associated penalties, and potential defenses, see our recent publication on HG.Org: St. Petersburg Leaving the Scene of an Accident Defense Attorney.

Tuesday, August 11, 2015

Florida Sentencing Enhancements Pt. 3: Three Time Violent Felony Offenders & Violent Career Criminals

This post is our third in the Florida Sentencing Enhancements series and provides a brief overview of the Three Time Violent Felony Offender and Violent Career Criminal statutes.   To be sentenced as a three time violent felony offender, the defendant must first be facing a felony charge that is enumerated in Florida Statutes section 775.084(1)(c).  The list of applicable offenses are some of the most serious felony crimes in this state and include, for example, Arson, Sexual battery, Robbery, Kidnapping, and murder.  Next, the defendant must have at least two prior convictions for an offense outlined in 775.084(1)(c).  The conviction, or release from sanction (whichever is later) must have been within the five years that precedes the commission of the qualifying offense (i.e. that which is before the court for sentencing).  Where the court determines that the defendant qualifies, it must sentence the defendant to the statutory maximum. 

To be sentenced as a violent career criminal, the defendant must first be facing a charge that is enumerated in Florida Statute section 775.084(1)(d), which includes any "forcible felony" (under Florida statute section 776.08), Aggravated stalking, Aggravated child abuse, Aggravated abuse of an elderly person, certain specified sex crimes, Escape, and certain offenses involving the use of a firearm.  The offense must have been committed on or after October 1st, 1995.  Next, the defendant must have served time in a state or federal prison.  Finally, the defendant must have three or more adult convictions for an offense outlined in 775.084(1)(d).  The conviction, or release from sanction (whichever is later) must have occurred within the five years that precedes the commission of the qualifying offense.  Here, the court has discretion as to whether the defendant should be sentenced as a violent career criminal where he or she otherwise qualifies.  If the court decides that the enhancement is appropriate, it may sentence the defendant to a number of years that far exceeds the otherwise applicable statutory maximum and must impose certain minimum mandatory sentences. 



Saturday, June 27, 2015

Fleeing and Eluding Offenses in Florida

Fleeing and Eluding is the only traffic crime that constitutes a felony no matter the offense level, degree, or prior record of the accused.  In Florida, since 2003, there is no longer a misdemeanor fleeing and eluding offense.  What's more, the legislature mandates an adjudication of guilt in all cases, which means even a first offender will be branded a convicted felon if the case is resolved by way of a plea or a finding of guilt by a judge (in an bench trial situation) or jury.  There is also a mandatory driver's license revocation, that can last anywhere from one to five years.  In certain situations, the court is required to impose a minimum mandatory sentence as well.  If sentenced to a minimum mandatory term of imprisonment, the accused person, by statute, is ineligible for any sort of gain time or discretionary early release.  If you have been arrested for Fleeing and Eluding, or think you might be, early intervention by an experienced St. Petersburg criminal defense lawyer is essential.  In many instances, much can be done to avoid the potentially devastating impact of a Fleeing and Eluding conviction, especially in situations involving first offenders or where the circumstances aren't particularly aggravating. 

For more information, see our article on HG.Org: St. Petersburg Fleeing and Eluding Defense Attorney



Anatomy of a Prosecution in Pinellas, Hillsborough, and Pasco Counties, Florida.

To make an arrest, a law enforcement officer must have probable cause to believe a crime has been committed. Under Florida Law, to make an arrest on a misdemeanor, the alleged offense must have been committed in the officer's presence. There are, however, some exceptions to this requirement including, for example, domestic related battery offenses. A felony offense, on the other hand, does not have to be committed in the officer's presence to effect a lawful arrest. Where the officer has probable cause to believe a crime has been committed, he or she can either make an arrest on the spot, seek an arrest warrant from a judge or magistrate, or refer the case to the State Attorney's Office for further investigation and, if warranted, the filing of formal charges.

In the former scenario, the person is taken to jail and a bond amount is set (in Florida, a person is entitled to a bond unless the offense is a capital or life felony, and the proof of guilt is evident or the presumption is great). After the arrest, the prosecutor reviews the case, and makes a decision as to whether he or she is going to file formal charges. In Florida, a charging document is called an "Information".  If an Information is filed with the clerk of court, the case is set for an arraignment.  If the prosecutor decides not to pursue criminal charges, he or she files what is called a "No Information" or a "Letter of Release" and prosecution is terminated. 

In the latter scenario (where no arrest was made after the crime was allegedly committed), the prosecutor reviews the case (usually the police report and any other evidence collected by law enforcement) and makes a decision as to whether there is a reasonable likelihood of successful prosecution. If so, the prosecutor will file an Information. If misdemeanor charges are filed, the defendant will receive a summons to appear in court for an arraignment (by mail).  If felony charges are filed, a warrant is issued for the defendant's arrest. Once again, as long as the offense is not a capital or life felony, the defendant is entitled to a bond. Whether a felony or misdemeanor charge is filed, the clerk will set the case for an arraignment thereafter. It should be noted that certain traffic offenses, such as DUI, are charged by citation. After the officer makes the arrest and files the traffic ticket with the clerk, the person is formally charged (there is no review process by the prosecutor). 

Whether the arrest is made by the police officer at the time of the alleged offense, or by warrant sometime thereafter, upon being taken into custody, the defendant must be brought before a judge or magistrate for what is called an advisory hearing or a first appearance hearing within 24 hours.  At the advisory hearing, the judge informs the person of the charge(s) upon he or she has been arrested, reviews the arrest affidavit to ensure there is sufficient probable cause to hold the person in lieu of bond, addresses the reasonableness of the bond amount, and conducts a brief financial inquiry to determine whether the person qualifies (provisionally) for the services of a public defender. 

An arraignment is not set unless and until a formal charge is filed by the prosecutor (except in certain traffic related offenses as stated above - there, the arraignment is set once the citation is filed by the arresting officer). The purpose of an arraignment is to have the judge advise the defendant of his or her formal charges, and ask the defendant whether he or she pleads guilty or not guilty. If the defendant pleads guilty, he or she may be sentenced on the spot, or sentencing may be deferred to a later date. In most cases, the defendant's attorney, upon being retained, will file a written plea of not guilty on the defendant's behalf.  The filing of this document waives the defendant's appearance at the arraignment and the case is set, by the clerk, for a pre-trial hearing. There are some exceptions this general principle however: drug court, for example, usually requires the defendant's presence at the arraignment. 

A "demand for discovery" is often filed with the written plea of not guilty (as part of the same pleading). When discovery is demanded, the State is required to provide all of the evidence in their possession against the accused, including witness lists, video tapes, police reports, audio recordings, etc. By demanding discovery, the defendant obligates himself or herself to certain reciprocal discovery requirements. It should also be noted that in Florida, the defendant is entitled to take depositions of the state's witnesses (and vice versa) in criminal cases. Other states, such as Georgia, do not permit the taking of depositions in criminal cases, except in very limited circumstances. 

Most judges will allow three (or so) pre-trial conferences before setting the case for trial. The purpose of the pre-trial conference is to keep the court appraised of the progress of the case (i.e. compliance with discovery obligations, scheduling of depositions, etc.) and to give the defendant an opportunity to resolve the case if a plea agreement has been reached. Also, if there are any issues that need to be resolved by way of a defensive motion, such as a motion to suppress, the court will usually set a special date to have the motion heard (a date that is convenient for the court, the attorneys, the defendant, and the witnesses to be called by either side). If a motion to suppress is granted, the state may or may not choose to appeal the court's ruling. If not, then they will usually drop the charges, but not always. If the evidence suppressed is not dispositive (in other words, there is still enough evidence against the accused to proceed with prosecution) then it is unlikely the charge will be dropped. 

If the case is resolved at a pre-trial conference, then the defendant is usually sentenced at that time and the case is disposed of.  This is not always the case, however.  The court may accept a plea of guilty of no contest, and set the matter for a sentencing hearing at a later date to allow the defendant's attorney to prepare and present facts and/or argument in mitigation ( and for the state to rebut the same). 

If the defendant decides to exercise his or her right to a trial (either before a judge or judge and jury), then a trial date is set. If the defendant is found not guilty, then prosecution is terminated and the state is constitutionally barred from re-initiating a subsequent prosecution based on the same conduct. If the defendant is found guilty, then the judge is required to sentence the defendant to any minimum penalties prescribed by law (for that particular offense) and has the discretion to sentence the defendant up to the statutory maximum. If found guilty, the defendant may file certain post trial motions, such as a motion for new trial, and may also want to file an appeal. 


The preceding is just a brief overview of the process. Specific questions should be directed to an experienced Tampa Bay area criminal defense attorney.

For more information, visit our website:  St. Petersburg Criminal Defense Attorney

Tuesday, June 9, 2015

Criminal Mischief Offenses in Florida

Criminal Mischief is, for all intents and purposes, "vandalism".  In Florida, it can be prosecuted as a misdemeanor or a third degree felony, depending on the extent of damage, the nature of the property damaged, and whether the person has a prior criminal mischief conviction.  If the offense involves graffiti, the court is required to impose certain minimum fine amounts, which is also dependent on the number of prior convictions, if any.  Finally, for minors, the court has the authority to suspend the person's driver's license.  Criminal mischief offenses, at any level, are serious and carry some heft potential penalties. Early intervention by an experienced St. Petersburg criminal defense attorney can, however, have a significant impact on the outcome of the case. For more information on criminal mischief offenses in Florida, see out recent publication on HG.Org:  St. Petersburg Criminal Mischief Attorney.

The Kilfin Law Firm, P.C. is a Tampa Bay area DUI and criminal defense firm representing clients in St. Petersburg, Clearwater, Tampa, New Port Richey, Dade City, and Bradenton