Florida Legislature Agrees on Stand Your Ground Changes

As the legislative session neared a close last week, the Florida House and Senate reached a compromise to a bill that substantially changes the Stand Your Ground Law in Florida. The new law would shift the burden from from the Defendant to the prosecutor at the pretrial hearing to prove that the case is strong enough to proceed against the Defendant. If Governor Scott signs the bill, the burden will no longer be on the Defendant at the ‘Stand Your Ground Hearing’.

Though both the House and Senate agreed that they wanted to put the burden on the prosecutor for the pretrial hearings, it wasn’t until the last day of session on Friday that both houses came to a compromise on what that burden should be. The Senate was pushing for a beyond a reasonable doubt standard, while the House position to use a clear and convincing standard ultimately won out. The bill will now go to Governor Scott’s desk to sign before it becomes law. It is expected he will sign it, as the bill garnered widespread Republican support in both houses of the legislature.

What does this change mean? The original ‘Stand Your Ground’ law, among other things, created a right of immunity from prosecution for people who use justifiable force to defend themselves. Unfortunately, the legislature did not clearly establish a procedure for determining when immunity was appropriate, that is, how do you know when force is justified so that a person cannot be prosecuted. Over the next 12 years, the courts formulated a procedure whereby a hearing would be held prior to the case going to trial. The courts put the burden on the Defendant to demonstrate that he was immune from prosecution.

The legislature has now essentially said, hey wait: the burden is on the state to prove a case. We didn’t establish immunity to burden the Defendant, or to remove the burden from the State… we created it to protect those who used force to defend themselves. This new law, if it is signed by the Governor, will put the burden on the prosecutors to demonstrate by clear and convincing the likelihood that the defendant was not justified in using force before they can put the defendant to trial (where they will still have the burden beyond and to the exclusion of every reasonable doubt).

While there was strong support for the bill, there was opposition from anti-gun activists, as well as from many prosecutors. The opposition from prosecutors may seem surprising from a generally conservative profession, but this bill directly affects them by making it more difficult to prosecute cases where use of force will be raised as a defense. It has been speculated that prosecution costs will rise, but the other effect of the bill may be to discourage prosecutors from proceeding on cases they are less likely to win. The cost may end up being a wash when all the factors come to bear, but only time will tell. In the meantime, this bill will definitely help people who claim justifiable use of force.

Florida’s Death Penalty Reinstated, Governor Signs Law for New Procedure

Governor Rick Scott has signed into law the bill amending the procedure for Florida’s death penalty. The new law requires a unanimous jury finding for the death penalty, in order for it to pass constitutional muster.

Florida will soon have a Death Penalty Procedure, Once Again

Florida’s “Death Chamber”

The Florida Legislature fast-tracked a fix-it bill for the death penalty, which was found to use an unconstitutional procedure because it did not require a unanimous jury finding for a recommendation of the death sentence. That law was an imperfect fix for the previous procedure, and the Florida Supreme Court subsequently made it clear that a unanimous recommendation would be required to meet constitutional muster. Yesterday the Florida Senate approved a new bill that does require unanimity, and today the  Florida House voted for it as well. The bill will head to the Governor’s desk, and he is expected to sign it in short order, effectively re-instituting the death penalty in Florida.

Those sentences to death after 2002 will have to have a new sentencing hearing if the State still wishes to seek the death penalty.

Michael Lambrix

For those death row inmates whose cases were finalized before 2002, it appears the death sentences will not have to be revisited, pursuant to a Florida Supreme Court Decision that came out yesterday. The Court ruled that the legal issue is procedural, which means that it is not retroactive from prior to 2002. The court found that the state can move forward wit the execution of Michael Lambrix, who killed 2 people in Glades County some 30-plus years ago. He will surely seek a federal appeal before his execution goes forward.

Governor Rick Scott wants to Raise Law Enforcement Pay

Gov. Rick Scott

Governor Rick Scott announced this week that he is seeking a budget allocation to increase the pay of correctional officers and probation officers. These officers are surprisingly underpaid, starting at under $30,000, which has made it difficult to fill positions and retain officers. The State doesn’t even provide a firearm to probation officers that have to go out in the field to visit felons.

A few weeks ago he also announced that he is seeking a raise for state law enforcement officers, including FHP troopers, as well as FDLE, FWC and other agencies. The requested raise is modest, but probably overdue. I was speaking to some officers in court recently, and was surprised to see troopers leaving FHP to work in local departments, but the financial incentive was just too great. Fair pay is essential for maintaining the quality of our law enforcement officers.

The pay raises will still have to be discussed during the upcoming budget negotiations, and are far from a done deal. Not only is there concern of a deficit, Governor Scott is hoping to cut the budget by over $600 million. Some tough decisions will have to be made, but the law enforcement and corrections raises need to come sooner than later.

Congrats to the New SW Florida Judges

Late last week, the announcements of the new circuit judges came out from the governor’s office. Crimcourts would like to extend congratulations to Leigh Frizzell Hayes and Geoffrey Gentile have been appointed to take the two impending vacancies on the 20th Judicial Circuit bench. Judge Hayes has been promoted from County Judge where she had served for several years. Sounds like she will be handling family law cases in Charlotte County, we’ll miss her in Lee County.

I heard early enough last week that I already congratulated Devin George, who has been appointed to the vacant County Court position. I’ve known Ms. George going all the way back to when we were both prosecutors, and think she will do a great job on the bench.

Judge Hayes’ promotion means that there will be another vacancy for her old position on the County Bench in Lee County… which means another round of applications and interviews.

Congratulations to Lee County’s Newest Judge

Devin George has been named to the open county court position in Lee County. Ms. George has worked at the State Attorney’s Office for 10 years, and I have worked with her over the years. She will be a credit to to the bench, and we extend her our congratulations.

Legislature Acts to Expedite DNA and Rape Kit Testing

Lizbeth Benacquisto

I don’t know why it should take an act of the Legislature to get thousands of DNA samples from Rape Kits tested, but that’s apparently what it takes. Our own Senator from Southwest Florida, Lizbeth Benacquisto (R, Lee and Charlotte Counties), has sponsored a bill to expedite the process, and the bill has now passed the Criminal Justice Committee, an early step in the process of becoming a law. Kudos to Ms. Benacquisto, and AG Pamela Bondi, who has also made it a point to see that these rape kits get tested in the name of justice.

It remains to be seen how long it takes the state to catch up to the backlog of kits, numbering over 13,000 at one point. In addition to Bondi’s urging, Governor Scott has also pushed for money to get the kits tested. It’s a shame that it still has not happened, and Senator Benaquisto has taken real action to see that happen.

See previously: https://crimcourts.wordpress.com/2015/11/19/shocking-florida-has-more-than-11000-rape-kits-left-untested/

Shocking: Florida has more than 11,000 Rape Kits Left Untested

Gov. Rick Scott

Rick Scott has requested $8.5 million to increase the FDLE budget to try to address the backlog of untested DNA kits in Florida evidence lockers. And he’s not the first to bring this matter to attention, Attorney General Pam Bondi has also pushed to get the backlog of DNA kits tested. This has been front page-level news for weeks now, and it’s time to get something done to pursue our most violent offenders. I applaud Governor Scott for moving this funding request forward and urge anyone involved to get it done quickly.

The concern is real: I had a client that was recently the victim of an attempted murder. A violent criminal fired into his bedroom window, and his girlfriend was gravely injured. Fortunately she is recuperating, but only after multiple surgeries and weeks in a wheelchair. I spoke to the Detective handling the case, who has a good idea of who did it, and will have a strong case, once the DNA evidence is tested. It has been submitted, but it has now been sitting for months in the DNA backlog. That means a violent madman with a gun is still running around at large because the FDLE hasn’t gotten around to testing the DNA evidence that was collected. That’s unacceptable. Meanwhile, the jail is full of non-violent offenders who can’t afford to bond out. It’s time to get our priorities straight.

Two New Judges Appointed

Two 20th Judicial Circuit positions have been filled. Robert Branning has been appointed to a circuit position, and Scott Cupp has been appointed to the county seat in Hendry County.

Medical Marijuana Will be on the Florida Ballot

Marijuana debate

The legal challenge to the ballot initiative for legalizing medical marijuana has been denied by the Supreme Court, and Florida voters will  get a chance to allow medical marijuana when they go to the polls later this year. The denial was a blow to Attorney General Pamela Bondi, who raised the challenge to the wording of the ballot initiative. The political side effect is that it may hurt her reelection chances if the marijuana vote draws more democrats to the polls. Governor Rick Scott has also come out against medical marijuana, while his challenger, Charlie Crist is for it. Crist is employed by attorney John Morgan, who is the primary financial backer of medical marijuana. Morgan and his organization poured 4 million dollars into the signature drive, which was successful in garnering the necessary vote to get the measure on the ballot.

This is just the beginning of the campaign: supporters still face an uphill battle to garner the required 60% of the vote for the measure to pass. It will be interesting to see how the candidates incorporate their support or disapproval of the measure during their campaigns.