In a recent attempted second degree murder case near Bartow, Florida (which is about 3 1/2 hours southwest of Jacksonville, Florida), a defendant’s attempted second degree murder conviction was reversed because the judge did not properly instruct the jury about the defendant’s right to defend himself.
In this case, the defendant, the alleged victim and two other friends were sitting in a park drinking. The defendant and the alleged victim got into some type of altercation, and the defendant ultimately stabbed him with a knife. When questioned by the police and throughout the trial, the defendant (and his criminal defense attorney) claimed that he stabbed the alleged victim because he thought the alleged victim was going to kill him.
In this attempted second degree murder case, the judge instructed the jury that a person cannot use deadly force unless he/she first reasonably tries to avoid the danger from the other person. However, the law has changed, and this is no longer an accurate statement under Florida law. Florida has since eliminated this so-called duty to retreat. Under current Florida law, as long as a person is not doing anything illegal and is in a place he/she has a right to be, he/she does not have to retreat, can stand his/her ground and can use any force reasonably necessary to prevent death, great bodily harm or a forcible felony.
In other words, in the past in Florida, before a person could use deadly force, he/she had to retreat or avoid the situation if reasonably possible. Now, if a person reasonably believes that he/she is about to be the victim of violence and/or a forcible felony, he/she can use reasonable force to prevent that from occurring without first determining if retreat is reasonable. And when a person does use deadly force under those circumstances and is charged with a violent crime, he/she can use the new Florida law as a complete defense to that use of force. Because the judge failed to tell the jury about this new law in this case, the defendant’s conviction for attempted second degree murder was thrown out.