Criminal Defense Attorney | Criminal Defense Law

Blog Published By Kenneth Padowitz, P.A.

Self-Defense and Florida’s New Perspective | Criminal Defense Law

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 Florida’s New Perspective on Self-Defense

Florida Governor Rick Scott made it official that the use of defensive threats of force, such as “warning shots”, is considered self-defense. By signing HB89, Floridian’s are now allowed to use a defensive threat as a means of self-defense, without the fear of going to prison.

An Affirmative defense is defined as one in which a defendant admits to all elements of the crime but is not held criminally liable. Affirmative defenses fall into two categories, either an excuse or justification. In a justification defense, the defendant admits to all elements of the crime, but argues there is no criminal liability because the acts are justified. Where as in an excuse defense, the defendant argues the wrongdoing is excused for some reason that is personal to the defendant. Lack of mental capacity, insanity, and duress are all examples of an excuse defense.

Self-defense is a justification defense. The defendant is a non aggressor who reasonably believes that force is necessary to protect themselves from the imminent use of unlawful force by another. The force used by the defendant must be proportional to the harms threatened. In other words iSelf-Defense Criminal Lawt is never ok to use deadly force to repel a non-deadly attack.

The new statute can be attributed to the Marissa Alexander case. Alexander fired a “warning shot” in response to an attack and death threats made by her husband. The jury instructions in that case implied that self-defense would not be applicable if no injury had occurred. Being that the “warning shot” inflicted no injury on her husband, Alexander was unable to use a self-defense claim. She was originally sentenced to 20 years under Florida’s 10-20-Life sentencing law, for the firing of the gun. Her conviction was later overturned by the Florida Court of Appeal. This is because self-defense is now allowed whether an injury is inflicted or not by the defensive behavior.

Also in the new law mandatory minimums are waived in cases of imperfect self-defense. Imperfect self-defense occurs when the defendant becomes the aggressor or the belief to use self-defense was unreasonable. In these cases a person would still be found guilty, but of a lesser crime because self-defense would not apply. Prior to HB89 a statutory minimum sentence would be in effect, which can sometimes be 20 years. Now the courts have discretion in the sentencing.

Marion Hammer, a spokesperson for the United Sportsmen of Florida says, the bill’s focus is protecting American’s right to self-defense. “This bill is about stopping abuse and self defense is a right guaranteed by the Constitution.”