Self-Defense

June 11, 2021

DO YOU UNDERSTAND YOUR MIRANDA RIGHTS?

The United States Supreme Court handed down a decision that has been historic in a case entitled the Miranda v. Arizona, in 1966. Essentially, four cases made it to the United States Supreme Court with similar issues. All cases involved interrogation by police in a closed room where the putative Defendant was cut off from the outside world. In three of these cases, the Defendant signed statements that were admitted at trial and one of the cases involved oral statements admitted at trial. Following the Miranda Case, whenever a person is taken into detention, that individual must be advised of their Fifth Amendment right against making any self-incriminating statements. When the police question someone in custody, they must advise:

You have the right to remain silent.
Anything that you say can and will be used against you.

June 3, 2021

What is the Speedy Trial Rule?

by Neil Weinreb

The Sixth Amendment to the U.S. Constitution is what Florida’s Speedy Trial Rules are based upon. The right to a Speedy Trial is a fundamental right. It is designed to eliminate incarceration for long periods of time when one is accused of a crime. The Florida Rules of Criminal Procedure provide that persons charged with a crime will be brought to trial within 90 days of arrest where the crime charged is a misdemeanor and within 175 days where the crime charged is a felony. Rule 3.191(b) provides for a Defendant to demand a speedy trial in writing and when this occurs, he or she is entitled to trial within 50 days. Under this rule, such a demand signifies that the Defendant is prepared to proceed to trial within 5 days.

What happens if the state fails to conduct a trial within the statutory time periods?

Where the state fails too bring the accused to trial within the above referenced time periods, the Defendant is discharged (except for exceptions to the tolling of these time periods).

March 15, 2021

Who Should File a Rule 3.850 Post Conviction Relief Motion?

by Neil Weinreb

When Should You File a Post Conviction Relief Motion in Florida?

A motion for post conviction relief is a motion that is filed after an individual is convicted of a crime where the court is being asked to relieve a person from their conviction. The following grounds may be used as the reason for filing:

The sentence imposed was illegal or violates the Florida or United States Constitution.

June 28, 2018

Florida Supreme Court to Rule on Retroactive Application of Stand Your Ground Law

by David M. Goldman

The Florida Supreme Court will take up a question about whether a 2017 change to Florida’s “Stand Your Ground” self-defense law should apply to older cases. The 2017 change shifted the burden of proof from the defense to the prosecution. Two appellate courts have split about whether the change in 2017 should apply retroactively to defendants who were arrested before the law took effect but whose cases were pending.

The case is Tashara Love v. The State of Florida, 3D17-2112 (Fla. 3d DCA May 11, 2018) a case that was heard by the Third District Court of Appeal. Love’s writ of prohibition was denied, essentially denying her statutory immunity under the Florida Stand Your Ground Law, F.S. 776.032. On November 26, 2015, Love and a group of women were involved in an altercation outside a Miami-Dade nightclub. Love shot the victim, Thomas Lane, as he was about to hit her daughter. Love was charged with one count of attempted second degree murder with a firearm and Love invoked the Stand Your Ground Law because she committed the crime while defending her daughter.

Before the date the immunity hearing was held, the Florida Legislature amended F.S. 776.032. Prior to the amendment, the Florida Supreme Court held that defendants had the burden of proof in pretrial immunity hearings and they had to prove by a preponderance of the evidence their use of force was justified. The amendment provided that once a self-defense claim of immunity from criminal prosecution was raised by the defendant, the burden of proof by clear and convincing evidence is on the prosecution seeking to overcome the immunity. The State argued at her immunity hearing that the statute did not apply retroactively, and the trial court agreed and applied the preponderance of the evidence standard of proof. The Third DCA ruled that the statute did not apply retroactively, and Love was not entitled to the shift in burden of proof.

December 4, 2017

Arrested for Assault or Battery of a Law Enforcement Officer? Penalties in Florida are More Severe than Normal

by David M. Goldman

Florida law makes penalties stricter for assault or battery of a law enforcement officer. Under Florida Statutes 784.07(2), when you are charged with knowingly committing an assault or battery upon a law enforcement officer, the charge will be reclassified as follows:

(a) Second degree misdemeanor assault will be a first degree misdemeanor

(b) First degree misdemeanor battery will be a third degree felony

September 23, 2015

Puppy Shoots Florida Man in Self Defense

by David M. Goldman

According to nbcnews.com, a Florida man is currently being investigated for possible animal cruelty charges after he was shot in the wrist… by a puppy. It sounds unbelievable, but apparently it happened, and there are no charges pending against the puppy, and rightfully so. Jerry Allen Bradford set out to shoot seven shepherd mix puppies, because he was unable to find them homes. Apparently, turning the puppies over to the shelter was out of the question. There can be a fee associated with turning animals in to shelters, but Bradford’s actions are not likely to be excused. While Bradford held one of the puppies, the puppy squirmed and its paw hit the trigger. How is that for instant karma? Bradford had already used the revolver to shoot three of the puppies, which were found in a shallow grave after authorities arrived. The other four puppies were unharmed.

As a Jacksonville criminal defense lawyer, I immediately began to think about possible defenses in this case if the puppy were to be charged with the shooting. For Mr. Bradford, I’m pretty sure that animal cruelty charges will likely stick, but based on the language found in Florida statute 828.12, there may be arguments to be made in his defense also. However, the puppy has a better case.

Self defense allows a person to respond to force with an appropriate amount of similar force. In this case, deadly force is being used against the puppies. The law will look to the reasonableness of responding to Bradford with deadly force. The shooting in this case undoubtedly will be justified where the puppy has observed Bradford fatally shoot three of his puppy brothers. In this instance, the puppy was reasonably in fear for its life. Self defense law allows a person to come to the defense of others, just as much as it allows for one to protect himself or herself. The puppy from this story managed to save four lives, one of those lives was his own, making him a hero in the eyes of many. If you or a loved have been charged with a crime or are under investigation for any offense, including gun related offenses, the Law Office of David M. Goldman, PLLC can help. We have experienced Jacksonville criminal defense lawyers and Jacksonville gun lawyers on staff ready to put their experience to work for you. Call us today at (904) 685-1200 for a free initial consultation.

August 25, 2015

Shooting Your Gun in Self Defense

by David M. Goldman

If you are a gun owner with thoughts of protecting yourself and/or your family, getting a concealed carry permit is an important task for you. As a Jacksonville criminal defense lawyer and Florida gun rights lawyer, I can tell you that any situation where a gun is involved is one that is likely to be highly scrutinized and taken really seriously. This applies to situations where crimes are committed with guns, especially if there is a shooting. So why does this matter to people that lawfully own guns and use them for good? Well, even shooting your gun in self defense can lead to you being in hot water under some circumstances. Having a concealed carry permit will usually remove some of the questions from the minds of law enforcement when they conduct their investigation.

Chapter 776 of Florida’s statutes is called Justifiable Use of Force. This collection of statutes gives guidance to when the use of force, including deadly force is okay. Shooting your gun in self defense will always be deadly force. Deadly force is described as force that is likely to cause great bodily injury or death. After all, the purpose of firing is to eliminate any threat that is present. If some properly, a firearm can help you to eliminate the threat against you and/or your family. Gun owners must be careful in this regard. You are only authorized by law to return the amount of force that is used against you. Shooting a guy during a fist fight at the park will surely land a person in prison. However, the law presumes that deadly force is appropriate in certain situations, for example when a stranger enters your home in the middle of the night without your permission. Chapter 776 of Florida statutes allows you to presume that the would-be burglar is there to cause you great bodily harm.

Calling a gun rights lawyer should be the next call made after shooting your gun. You should speak with an attorney prior to providing a statement to police. In my experience, this annoys law enforcement a little, but I believe it’s worth protecting your future. At the Law Office of David M. Goldman, PLLC, we have the necessary experience and knowledge to help in these situations. Call us today at (904) 685-1200 to find out more about your rights and about what should be done in the event of a discharge.

May 29, 2015

Justifiable Use of Force: Self Defense Gone Too Far?

by David M. Goldman

fighting Depending on where and how you grew up, you may have been told as a child or heard someone else told, “If he hits you, hit him back!” My neighborhood back home in southern Georgia happened to be a place where such an attitude was common. This type of advice is where many people are first introduced to the concept of self defense. Florida law, under Chapter 776, contains a group of statutes that define the justifiable use of force, commonly known as self defense. The law doesn’t mention anything about being able to “hit back” if someone hits you. It’s a bit more refined than that. Bouncers at a Florida bar could learn this lesson the hard way.

A brawl at a Saint Augustine Bar recently has people questioning whether bouncers went too far in breaking up a fight. After two women began to fight, things were elevated by security at the Conch House in Saint Augustine, Florida. Much of the chaos was caught on video. News4jax.com reported that the bouncers may have even thrown an unconscious person into the water. Florida law allows you to defend yourself, even defend others, but there must be a reasonable amount of force used.

Florida Statute 776.012 states: “A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.” What this means is that you are allowed to use force to stop an ongoing attack against you. Florida law allows a certain amount of force to be used in protecting your property, as well.

April 29, 2015

Jacksonville Gun Rights Lawyer on Florida Gun Rights: Concealed Firearms in a Car

by David M. Goldman

Gun rights are near and dear to the hearts of many Americans. The second amendment to the United States Constitution protects our right to arm ourselves to the delight of many gun enthusiasts. The States routinely regulate the way people can exercise their gun rights, even though the U.S. Constitution protects against those rights being infringed. In the debate over guns laws throughout the years, anti-gun factions have been in support of more regulation concerning the way guns can be owned and possessed. I imagine that this is where legislation comes from that makes it a crime to carry concealed weapons, and makes it a more serious crime to carry a concealed gun than to carry some other concealed weapon.

Florida law, specifically Section 790.01 Florida Statutes, makes it a third degree felony to carry a concealed gun or firearm, while carrying other concealed weapons without a permit is only a misdemeanor. This shows the strong stance the State of Florida takes against gun crimes. Carrying a concealed firearm is punishable by up to five years in Florida State Prison. As a Jacksonville criminal defense attorney, I have represented clients charged with Possession of a Concealed Firearm on many occasions. Most often, my client had come into contact with law enforcement after a traffic stop, which under some circumstance or another ends up with the car being searched.

March 26, 2015

Florida Gun Rights: Aggravated Assault with a Firearm

by David M. Goldman

Exercising your Florida gun rights can turn into “gun wrongs”, if you don’t know what to do and what not to do. Last week I received a call from South Florida. On the other end was a panicked young concealed carry permit holder; we’ll call him “Eric”, which isn’t his real name for obvious confidentiality reasons. Eric had been arrested for pulling his gun to stave off a would-be road rage incident. As Eric drove, there was apparently something about his driving that ticked off another driver. The other driver began to drive erratically, darting in and out of traffic to catch up with Eric. Once the other driver caught up to Eric, the other driver rolled down his own window and began to yell at Eric. Believing things were about to escalate into a bad situation, Eric pulled his gun to encourage the angry driver to back off. Eric was subsequently arrested for Aggravated Assault with a Deadly Weapon, pursuant to Section 784.021, Florida Statutes.

Florida law defines an assault as “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” Aggravated Assault with a Firearm carries a mandatory minimum sentence of three years in Florida State Prison under chapter 775, specifically Section 775.087. I imagine that you are starting to see the importance of knowing what not to do as a gun owner. This is not a very pleasant position to be in. Making a claim of self defense may not be a viable option here. Key to a self defense claim is that a person uses the same amount of force that is used against the claimant. It also has to be a reasonable amount of force under the circumstances. As a Jacksonville criminal defense lawyer, I’ve represented people that have been in Eric’s position. The majority of them were law abiding citizens and good people that made a poor choice in a stressful situation. Continue reading