Use of Non-Deadly Force
Under Section 776.012, Florida Statutes, a person is justified in the use of non-deadly force in self-defense where the person reasonably believes that such conduct is necessary to defend himself or herself or another against such other’s imminent use of unlawful force. There is no duty to retreat.
If the defendant is in his or her home or vehicle, then, under Section 776.013, Florida Statutes, the law will presume that the defendant had a reasonable fear of imminent death or bodily harm if the alleged victim unlawfully entered or remained or attempted to remove another person against their will.
Use of Deadly Force
There are two primary statutes in Florida outlining when the use of deadly force is justified so as to avoid criminal liability.
Under Section 776.012, Florida Statutes (Florida’s “Stand Your Ground” Law), a person is justified in using deadly force (and does not have a duty to retreat) if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony or to prevent imminent death or great bodily harm to himself or herself or another.
Under Section 782.02, Florida Statutes, the use of deadly force is further justified when a person is resisting any attempt to murder such person or to commit any felony upon him or her or upon or in any dwelling house in which the person is located.
Presumption of Reasonable Fear
If a defendant is in his or her home or vehicle, then, under Section 776.013, Florida Statutes, the law will presume that the defendant had a reasonable fear of imminent death or bodily harm if the alleged victim unlawfully entered or remained or attempted to remove another person against their will.
Exception to Statutory Presumption
The presumption of reasonable fear of imminent death or great bodily harm does not apply if:
- the person against whom the defensive force is used has the right to be in the home or vehicle, or
- the person against whom the defensive force is used is attempting to retrieve a child or grandchild or other person over whom he/she has legal custody or guardianship;
- the person who uses defensive force is engaged in an unlawful activity or is using the home or vehicle to further an unlawful activity, or
- the person against whom the defensive force is used is a law enforcement officer, who enters or attempts to enter the home or vehicle in the performance of his or her official duties and the officer properly identified his or herself (or the person reasonably should have known that it was a police officer).
Objective Standard for Self-Defense
In determining whether the use of deadly force or non-deadly force was warranted, Florida law requires a jury to evaluate a defendant’s conduct using an “objective standard.” Shreiteh v. State, 987 So. 2d 761, 763 (Fla. 4th DCA 2008).
This means that the jury will consider whether a reasonable person in the defendant’s situation would have reasonably perceived an imminent threat sufficient to justify the degree of force used by the defendant. M.S. v. State, 88 So. 3d 238, 239 (Fla. 3d DCA 2011).
For non-deadly force scenarios, the defendant’s conduct must have appeared reasonably necessary to protect against an imminent use of unlawful force. S.J.C. v. State, 906 So. 2d 1115, 1117 (Fla. 2d DCA 2005). For deadly force scenarios, the defendant’s conduct must have appeared reasonably necessary to prevent imminent death or great bodily harm. State v. Quevedo, No. 3D21-2450 (Fla. 3d DCA 2023).
Where the defendant in a Florida criminal case presents any evidence of self-defense, the State must overcome the claim of self-defense beyond a reasonable doubt.
Self-Defense Entitlement at Trial
An accused is entitled to a jury instruction on self-defense in Florida when there is any evidence whatsoever to support the claim. St. Pierre v. State, 228 So. 3d 583, 585-86 (Fla. 4th DCA 2017). The right to a jury instruction attaches no matter how “weak or flimsy” the evidence. Gregory v. State, 937 So.2d 180, 182 (Fla. 4th DCA 2006).
The trial court should not weigh the evidence for the purpose of determining whether the instruction is appropriate. Calkins v. State, 170 So. 3d 888, 890 (Fla. 4th DCA 2015); Garramone v. State, 636 So. 2d 869, 870 (Fla. 4th DCA 1994). If any evidence exists, an instruction must be given to the jury. Kiernan v. State, 613 So. 2d 1362 , 1365 (Fla. 4th DCA 1993).
Legal Exclusions for Self-Defense at Trial
- Total Lack of Evidence: Where self-defense can not be reasonably inferred from evidence presented at trial, a court may deny a jury instruction or even bar a defendant from raising self-defense in closing arguments. M.S. v. State, 88 So. 3d 238, 239 (Fla. 3d DCA 2011).
- Self-Defense During Commission of a Felony: Under Section 776.041, Florida Statutes, self-defense is not available to a person who is attempting to commit, committing, or escaping after the commission of a forcible felony. Section 776.08, Florida Statutes, defines “forcible felony” to include:
- treason, murder, manslaughter, sexual battery, carjacking, home invasion robbery, burglary, robbery, arson, kidnapping, aggravated battery, aggravated assault, stalking, use of bombs, aircraft piracy, and any other felony that involves the use or threat of physical force or violence against any individual.
- Provocations of Violence– Under Section 776.041, Florida Statutes, self-defense is not available where the defendant initially provoked the violence. To claim self-defense in this scenario, the accused must present sufficient evidence that: (i) the alleged victim posed an imminent danger of great bodily harm and the defendant exhausted every reasonable means to escape such danger; or (ii) the defendant withdrew from physical contact, communicated the withdrawal, and the other person persisted.
Contact an Attorney
If you have been charged with a criminal offense and believe that you were acting in self-defense, contact the attorneys at Hussein & Webber, PL for a free consultation.