Don Waggoner Law

Orlando and Kissimmee Criminal Defense Lawyer and DUI Attorney

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STAND YOUR GROUND – SELF DEFENSE


In Florida, you have the right to defend yourself, even with deadly force, if you are attacked within your car or your home.  In Florida, you no longer have a duty to retreat first.  In fact, you can use deadly force even if the attacker does not.  But, you have to follow the rules.
Stand Your Ground and Self-Defense are both affirmative defenses and must be put forward by the accused person.  Under a Stand Your Ground situation, you are immune from arrest or prosecution unless there is probable cause to believe the force used was unlawful.
Orlando and Kissimmee Criminal Defense Attorney Don Waggoner is an experienced Stand Your Ground lawyer.  Attorney Don Waggoner has successfully defended Stand Your Ground cases and can help you defend yours.  If you find yourself in a situation where you used deadly force in self-defense, call Stand Your Ground lawyer Don Waggoner and discuss your options and your defenses.


Stand Your Ground – Fla .Stat.  776.013

The so-called Stand Your Ground law in Florida is found under F.S. 776.013.  The law states that when a person is in a dwelling, residence, or occupied vehicle, and perpetrator is in the process of unlawfully and forcibly entering, or had already unlawfully and forcibly entered a dwelling, residence, or occupied vehicle, or the perpetrator had removed or was attempting to remove a person against that person’s will from a dwelling, residence, or occupied vehicle, the person being attacked is presumed to hold a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another an may use defensive force that is intended to cause death or great bodily harm.  This means that if you are in your car and a perpetrator tries to drag you out and steal it, even if that person is unarmed, you may use any force necessary to prevent the carjacking, even a gun, knife, or other deadly instrument.  The same goes if you are lawfully in a dwelling or residence (this would include a hotel room), even if you are not the owner of the dwelling or residence.
You have to be careful, though, and make and have a reasonable belief the other person is in violation of the law.  You cannot use this defense against a person who has a legal right to be in the car or dwelling.  You can’t use it against a law enforcement officer who is executing a lawful duty.  You cannot use deadly force with presumed immunity against a person who is removing a child and has a right to remove the child.  Lastly, if you, yourself, are not acting lawfully, you will not be protected by the Stand Your Ground law.

In addition, a person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.


Self Defense – Fla. Stat. 776.012

Stand Your Ground is a form of Self-Defense, but Self-Defense does not give one the privilege of immunity from prosecution.  Rather, Self-Defense is a form of affirmative defense one would use at trial.  It is a defense for which the accused person would have to present evidence of in order to gain an acquittal.  This defense is found under F.S. 776.012


Self-Defense occurs when a person is attacked by another person in a place and situation where that person has a right to be.  For example, you are sitting in a bar, having a beer, and watching the Gators.  Suddenly a Georgia fan picks up the heavy, metal barstool and swings it at you.  Assuming you did not provoke the attack in any way other than being a Gator fan, you have the right to defend yourself with equal or greater deadly force.  If you can retreat and prevent the attack, you must do so.  Assuming the barstool is a deadly weapon, if retreat is not possible, you may use a barstool, a knife, a pool cue, your boot, or any other deadly weapon in a deadly manner to protect yourself.  Remember, you are in a bar and you are not supposed to have a gun, even if you have a concealed weapons permit, so you cannot use a gun.


Another example might be where you were walking in your neighborhood and you saw a person acting suspiciously whom you did not recognize.  You go up to the person and try to find out if he has a good reason to be where he is.  He becomes angry and strikes you to the ground, jumps on you, and starts beating your head on the sidewalk.  You are in fear for your life.  The guy is bigger than you and you cannot stop the attack.  You were in a place where you lawfully had a right to be and you had acted in a lawful manner.  You are being attacked with deadly force.  You may now use the concealed gun you lawfully carry to fend off the attack, even if you have to shoot and kill the guy.  All this is okay, except that you will have to convince a jury that you were truly in fear for your life and the force he used was deadly force.  If you don’t convince the jury, you lose. Now, in the same situation, the guy grabs the gun you are lawfully carrying and, in the struggle for it, you shoot and kill him.  If you can prove he had the gun or was trying to use the gun, that is deadly force used against you and you acted in self-defense.  Once again, however, you have to convince the jury.  These are examples of when a self-defense argument may be made, but, again, it is up to the accused person to prove what happened and the necessity for the use of the deadly force.


Aggressor Withdraws

No one who is the aggressor or who starts the fight may use the defenses of Stand Your Ground or Self-Defense.   F.S.  776.041.  An exception is when the aggressor provokes such great force from the attacked person in defense, that the aggressor reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant.  This would be in a case where the aggressor had not provoked deadly force originally, or, if deadly force had been used in the original attack, in good faith, the aggressor withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.


Immunity From Prosecution – Fla. Stat. 776.032

A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.


(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).