Category Archives: Stand Your Ground Law

The Evolvement of Florida’s Controversial Stand Your Ground Law

Broward County Criminal Defense Attorney explains Florida’s controversial Stand Your Ground Law…by Neil C. Kerch

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. Stat.; Kumar v. Patel, 227 So. 3d 557, 559 (Fla. 2017). The statute also provides immunity for those who lawfully use force in self-defense. § 776.032, Fla. Stat. The Florida Supreme Court subsequently determined in Bretherick v. State, 170 So. 3d 766, 775 (Fla. 2015), that a defendant has the burden of proof in a pre-trial Stand Your Ground immunity hearing and that the defendant has to prove by a preponderance of evidence that the defendant’s “use of force was justified, as specified by statute.”

Following the issuance of Bretherick in 2015,  the Florida Legislature amended section 776.032 and added subsection (4), which states:

In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).

The legislature provided that “[t]his act shall take effect upon becoming a law,” which occurred when the governor signed the bill into law on June 9, 2017. Ch. 2017-72, § 1-2, Laws of Fla.

The amendment shifted the burden of persuasion from the defendant to the state. The amendment also changed the quantum of proof required from preponderance of the evidence previously required of the defendant to clear and convincing evidence now required of the state, after the defendant makes a prima facie claim of self-defense immunity.

As you can see the Florida Stand Your Ground Law is evolving and with this evolvement it opens up new legal challenges.  For example, are the changes in subsection (4) procedural or substantive? Should we apply the changes retroactively or prospectively from the date the changes became law?

The answer is it depends on where you live in Florida.  If you live in the area that is covered under the the Third or Fourth District Court of Appeals, then the the amendment adding subsection (4) is a substantive change to the law, and as such, applies only prospectively from the date of enactment. If you live in the area that is covered under the the First or Second District Court of Appeals, then the the amendment adding subsection (4) is a procedural change to the law, and as such, applies retroactively.

If you or a loved one is facing Criminal Charges in Broward, Miami-Dade, or Palm Beach, Criminal Defense Attorney Neil Kerch has the knowledge and experience to guide you through Florida’s Controversial Stand Your Ground Law.



This Post is informational in nature and is not intended to provide or substitute for legal advice.  Each case is unique and should be evaluated by a Criminal Defense Attorney.

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