Is There a Deadline to File a Motion to Dismiss Based on Self Defense in the State of Florida? 

The Florida Legislature has granted immunity from prosecution to any person who acted in lawful self defense.   Fla. Stat. §776.032 provides that any person who acts with justifiable use of force is immune from criminal prosecution and civil action.  “Criminal prosecution” includes arrest, detention and being charged or prosecuted.   


So, how does that work exactly?  Who decides whether a person was acting in lawful self defense?  Initially, it is the police officer investigating the case.  The officer determines whether the person is immune from arrest because that person acted with justifiable use of deadly force.  §776.032(2) lays out the procedure for a police officer to use standard procedures for investigation, but provides that the officer may not arrest the person unless the officer determines that there is probable cause that the force used or threatened was unlawful.

If the police officer determines that the use of force was not justifiable and makes an arrest, the defendant gets a second bite at the apple.  The defendant can file a motion to dismiss, pursuant to Fla. Stat. §776.032.  At a hearing on the motion to dismiss, the trial judge would hear testimony, receive evidence and make his or her own determination whether the defendant is immune from prosecution.  §776.032(4) lays out the procedure for hearings before a judge.  Once a defendant makes a prima facie claim of self defense, the government then has the burden by clear and convincing evidence to show that the defendant is not immune from prosecution.   So, a defendant would file a motion claiming that he or she was acting in self defense along with the facts to support the claim.  If, on its face, the claim would result in justifiable use of force, the burden shifts to the prosecutor to show by clear and convincing evidence that the use of force was not justifiable.   If the judge denies the motion, the case could go to trial where a jury would decide whether the defendant is guilty of the crime or not guilty based on the use  of justifiable force.  A third bite at the apple.  

So, what are the rules when it comes to filing a motion to dismiss based on Florida’s Stand Your Ground Law?  Is there a deadline to file such a motion?  The Fourth District Court of Appeal recently looked at this very issue in Acostafigueroa v. State.   In that case, Mr. Acostafigueroa was charged with attempted murder after he struck a person over the head with a beer bottle and stabbed the person with the broken bottle.  Mr. Acostafigueroa filed a motion to dismiss based on the Stand Your Ground Law alleging that the person struck him with an object first.  He filed the motion about a year after his arraignment, but before the case was scheduled for trial.  


Florida Rule of Criminal Procedure 3.190(c) requires motions to dismiss to be filed before or at arraignment.  Because Mr. Acostafigueroa filed his motion well after his arraignment, the trial judge denied his motion as untimely.  But not so fast.  Mr. Acostafigueroa filed a petition for certiorari with the Fourth DCA arguing that the trial judge erred in denying the motion to dismiss as untimely.  And the Fourth DCA agreed.

The Fourth DCA held that a motion to dismiss based on Florida’s Stand Your Ground Law can be filed at any time and is not subject to the limitations set forth in Rule 3.190(c).  The Court determined that the 3.190(c) requirement to file a motion to dismiss before or at arraignment does not apply to Stand Your Ground motions to dismiss for three reasons. 


First, the rule itself, in 3.190(c)(3) states that a court may entertain a motion to dismiss at any time if the defendant is charged with an offense for which the defendant previously has been granted immunity.  The Fourth DCA reasoned that the Florida legislature granted immunity to anyone who justifiably used or threatens to use force.  So, if a person justifiably uses force, they have already been granted immunity per statute.  The immunity is self-executing.  Therefore, a defendant claiming immunity from prosecution based on justifiable use of deadly force can file a motion to dismiss at any time, under 3.190(c)(3).

Second, the Fourth DCA found that a motion to dismiss based on self-defense is a “fundamental” ground. The Florida Supreme Court has held that immunity is jurisdictional and a fundamental ground and may be raised at any time and it is not subject to time limitations in the rule. 

Third, the trial court had discretion to allow a motion to dismiss after arraignment, pursuant to the rule.  Rule 3.190 states, “[u]nless the court grants further time” before setting the time lime at or before arraignment.  Therefore, the trial court erred in not considering its discretionary power to allow the motion to be heard after arraignment.  The trial court should have considered factors like whether the case had been set for trial at the time the motion was filed, whether the attorney was engaging in gamesmanship or delay tactics and whether hearing the motion would result in disruption to the criminal proceedings. 

So, when it comes to §776.032 motions to dismiss based on self defense immunity, there does not appear to be a time limitation on when the motion must be filed.  In fact, it may be advantageous to first engage in discovery and to take depositions to help prepare for the motion and motion hearing.  Witnesses may provide evidence at a deposition that is beneficial to the motion.  Depositions will flesh out the facts and allow for a cleaner hearing.  Deposition transcripts can be used to impeach State witnesses who testify at the hearing.  Each case is different and each attorney will have to develop a particular strategy based on the facts of the particular case.

Jeremy-300x300LGL partner Jeremy Lasnetski has more than 20 years of criminal trial experience. He has represented clients in both Jacksonville state and federal criminal court since 2008. Before that, he was a state prosecutor between 2001 – 2008 handling gun crimes, organized crime, homicides, and more. He was also the division chief of the repeat offender unit. If you need a criminal defense attorney in Jacksonville, call Lasnetski Gihon Law at 904-642-3332.

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