Wednesday, October 31, 2012

Voting on the Florida Constitutional Amendments

While I am most reluctant to give advice on how to vote . . .  if you've read my book you already know I'm not a big proponent of constitutional changes.  So . . . here's a really good and simple piece of advice on how to vote on the amendments in this election -- and any future ones:


If you don't fully understand exactly what the amendment is all about -- what it will do -- why it's being proposed --  and what it will change -- don't vote for it!!!  

There are lots of special interest groups funded by some very high rollers who get big buck benefits on some of these amendments, or have millions to spend on personal agendas.   They hire the folks to get signatures,  the lawyers to draft these things, and the publicity to make some really bad things sound terrific.  Therefore,  if you're not 100% sure of what you're voting for -- it's probably a good sign you should be voting "no".

With that said -- here are the inside picks on the judicial issues:

1.  If you value the independence of the court system -- vote to retain the three Florida Supreme Court Justices!   This is a really awful political power play to destroy the independence of the Court, and ditch three of the best justices we have.  It's that serious.

2.   Amendment 5 is garbage!   It is an attempt to allow the Legislature to dictate how the courts should operate, and take that power away from the court.  It's a pure power play to destroy separation of powers.  Don't let them fool you!

Saturday, October 27, 2012

A lesson in what not to do -- Stand Your Ground

Warning Shots Just Aien't That Smart -- usually.
copyright 2012 by jon gutmacher

It's always interesting to see what happens in an actual "self defense" case -- in the sense of what you can do,  or more likely . . . what you shouldn't.  The recent case of State v. Vino,  37 Fla. Law. Weekly D2278 (Fla. 3DCA 2012) is instructive.

According to the appellate opinion -- Mr. Vino was sleeping at home around ten in the morning when his dogs started barking.  His yard is entirely fenced, and the gate was locked.   Unknown to him,  two FPL workers had traversed his fence via a ladder to shut off the power.   Mr. Vino,  whose home had been invaded by criminals before, believed serious criminal activity was happening.   He grabbed a rifle,  took cover behind his truck,  and fired a warning shot to show he was serious.   He then found out the two individuals were FPL employees.  At that point he ordered them off his property -- and as they were leaving fired another warning shot into the air.   He was later charged with two counts of aggravated assault, improper exhibition of a weapon,  and unlawful discharge of a firearm.   After a "Stand Your Ground" hearing -- all but the unlawful discharge were dismissed by the trial judge.   The State appealed.

The Third District Court of Appeal agreed with the trial court, and  said all but the final "warning shot" was lawful -- thus the "unlawful discharge" count would be allowed to go to trial.  However, the appellate court  remanded the case back to the trial court to allow the State to file any other charges it might feel were sustainable -- especially as the appellate court pointed out that once Mr. Vino became aware that the two individuals were not there to commit a crime  (ie:  when he found out they were from FPL) -- the right to use deadly force under Stand Your Ground ended.

So . . .  let's analyze the whole situation.

First . . .  the entry by FPL was most certainly a trespass.  However,  it was reasonable for Mr. Vino to believe it was a burglary and forcible felony -- and probably even a preclude to a robbery.   Thus,  he had the right to arm himself -- and the firing of the first warning shot -- while very "legally" dangerous -- was still lawful.  However . . . once he reasonably determined the two individuals were only FPL employees -- the use of deadly force was out!   Thus . . .  while the State had not charged Vino for the second "warning shot" -- except as a misdemeanor unlawful discharge -- it could have charged him for a separate aggravated assault!!!

Well . . . we all know that an aggravated assault with the discharge of a firearm is a twenty (20) year mandatory minimum!   If the State decides it wants to crucify Mr. Vino -- it's gonna have that opportunity.  At that point,  Mr. Vino's only chance is to convince a jury that the second warning shot was somehow lawful.   How the hell he'll be able to do that will be one heck of a feat!  So -- here's hoping the State is a bit more generous than usual.    Plus -- since the two FPL guys were in the process of leaving when the second shot was discharged -- it wasn't even in aid of stopping the trespass.

So . . .  like I keep telling folks -- warning shots and bravado -- are not real smart in this day and age of mandatory sentences.   If you don't believe your life is at stake -- keep your finger off the trigger!




Thursday, October 4, 2012

Fourth District blows it again

Jury Confusion on Deadly Weapon vs. Deadly Force:
copyright 2012 by jon gutmacher

Way back in  2004 the Third District Court of  Appeal,  in Rivero v. State,  871 So.2d 953 (Fla. 3DCA 2004), correctly noted that pointing a firearm without firing it was the use of "non-deadly force" as a matter of law.  In a self defense situation this can be a very important issue because you can't legally use "deadly force" except where there is a reasonable fear of imminent death or great bodily harm, or a reasonable belief such is necessary to stop or prevent the imminent commission of a forcible felony.  Seems straight forward.

However,  the problem is that juries are often confused where a firearm is used in a self defense situation, but not fired -- because the jury instructions often employ the term "deadly weapon",  and also the term "deadly force".   These often get confused in the jurors minds as referring to the same thing.  And . . . of course . . . they're not!

Why?

Well . . .  You can use a deadly weapon without using deadly force.  (holding or even pointing a knife or firearm is the use of no "force" against anyone.  However . . . it does have a potential to do so)   And . . . you can use deadly force without using a deadly weapon. (choking someone to death, beating their head into the concrete pavement, etc.)  In fact -- a firearm is considered a "deadly weapon"  even if unloaded.  

So . . . when someone displays a firearm to try to stop a misdemeanor  (almost always a bad idea) -- the defense is that it was the use of no force -- or non-deadly force -- and therefore not an "excessive" use of force -- and thus -- legal.    

It's a good defense in theory -- but it can be a hard sell to prosecutors and jurors -- and like I mentioned before -- it's almost always a bad idea where you think the other person is committing only a misdemeanor, because it almost always results in your arrest and prosecution.  

So . . .  what did the Fourth District screw up this time????

Well . . . since obviously the Fourth District is not my favorite of all Florida appellate courts when it comes to firearm and self defense issues -- my beef  (this time) is the recent case of  Garrido v. State,  37 Fla Law Weekly  D2194  (Fla. 4DCA 2012).  In that case,  the defendant had a dispute with a process server, and ordered him off his property.  The process server refused saying he had a legal right to be there.  The defendant decided the process server's refusal made him a "trespasser", and therefore he displayed his firearm to urge the other guy off his property.  The process server says he pointed it.  The defendant says he just held it.  Whatever -- he gets arrested for 'aggravated assault' with a three year mandatory sentence, and gets convicted by the jury.   The defendant had asked for a specific instruction to the jury that the use of the firearm was not the use of "deadly force"  -- and the trial judge refused.  Since this was a key issue in the defendant's case -- a claim that he was using only "non-deadly force" -- it was a critical issue for the defendant.

Now,  the Fourth District didn't argue that the defendant wasn't correct about it being "non-deadly force".  They totally agreed,  but even so they held that giving the instruction wasn't necessary.  That was a terrible mistake -- and amounted to a total lack of appreciation on  how jurors comprehend the issues in this type case.  In fact,   the jury actually had sent a note to the trial judge asking if an "unloaded gun was a deadly weapon?"  How more clear can it be -- that the instruction was needed???  How much clearer could it be that the jury was confused?  But . . . the Fourth District just blew the question away saying the jury wasn't confused, and a re-reading of the standard instructions  (which had confused them in the first place) were enough.  Garbage!

So -- let me say to the Fourth District,  and Judges Warner;  Stevenson; and Conner -- thanks alot for nothing!  Thanks for not understanding the importance of the issues.   Thanks for not understanding how critical this issue really was to the defense -- and to gun owners in general -- because while the opinion does not forbid trial judges from giving the requested instruction -- it basically insulates them if they don't.   That means that an anti-gun judge can screw with a defendant if they want -- without anyone knowing they're being intentionally screwed with.   Or,  a judge who doesn't understand the law -- will follow the same mistake as made in this case.   Just awful!

However . . .  one thing the Fourth District did point out in its opinion -- that is important to everyone who uses any type self defense  (or defense of property -- as was the defense in this case) --  The jury did have a right and duty to determine if the defendant's use of force was based on a "reasonable belief" that the process server was trespassing.  If that belief wasn't reasonable -- then "any" use of force (even non-deadly force) was unlawful.   That applies to any self defense or defense of property situation -- and should serve as a warning.  Just because you don't like what somebody is doing -- unless you have a belief -- that is reasonable -- that the other person is acting illegally -- you will have zero right to use any force against them whatsoever -- however minimal!   

On the other hand,  the case was reversed for a new trial on another issue -- so all was not lost.  But still, the  opinion has still managed to screw up things for anyone who winds up in a self defense trial.  

Hope this was instructive.