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Monday, March 06, 2017

STAND YOUR GROUND - THE 2017 LEGISLATIVE SESSION IS OPEN .....


THE CAPTAIN REPORTS:

BANG, BANG, YOU'RE DEAD .......

Florida's Stand Your Ground law could dominate the front page of newspapers later this week with the start of the legislative session set for tomorrow.

On Tuesday, March 7, the Florida Legislature opens its 2017 Spring session.  The session is scheduled to last for 60 days and should end on May 5, 2017.  On Tuesday morning, Governor Scott will give his State of the State speech to a joint session of the Florida House and Senate.

If you have not been following the show that has been taking place in Tallahassee over the past two months, then you have been really missing the fun.  You may have thought that with the Republicans having a Governor, all four cabinets members, and an overwhelming majority in both the House and the Senate in place, they had planned on running roughshod over their Democratic rivals.  If you thought that, you would be wrong.

Instead, it appears much more likely that they will make every effort to run each other over during the next two months.  Driving the lead cars will be Governor Scott, House Speaker Richard Corcoran (R-Land O' Lakes) and Senate President Joe Negron (R-Stuart).  According to most insiders, this is setting up to be the most mean-spirited, marathon battle of an uncivil war, as ugly as anything the state has seen in a long time.

Corcoran fired the first shots by pushing to end two of Governor Scott's biggest priorities: Enterprise Florida and Visit Florida. Scott is pushing for $85 million for Enterprise Florida and $76 million for Visit Florida for the budget year that begins July 1.  Enterprise Florida's objective is to promote Florida as a premier business destination to a targeted audience of corporate decision makers and site selectors, and encourage them to select the state for their next location, relocation or expansion project. Of course, in order to do that, the State uses that $85m to lure the businesses to Florida.  Corcoran calls it corporate welfare.  Visit Florida is the tourism arm that funds programs to attract more tourists to Florida.  They were in the news recently when it was revealed that they paid pop superstar Pitbull $1 million to promote tourism in Florida.  As a result of Corcoran and a lawsuit he filed against Visit Florida, demanding that they reveal the previously sealed contract with Pitbull, the CEO of Visit Florida was forced to resign.

Scott has been traveling the State holding town hall style meetings in an effort to boost support to the two programs.  Where did he choose to hold the meetings.  In every city where a house member that voted against his two programs resided.  Corcoran has been issuing nasty tweets, slash-and-burn videos, and all other forms of medium to trash the Governor and his two programs.  Scott has funded a robo-call campaign blasting the House Speaker. The two men are not speaking to each other.  The Orlando Sentinel wrote about the feud here.  The Tampa Bay Times said of the feud, "it involves philosophical differences, personal animosity and political ambition, all of which have had the state capital teetering on the edge of dysfunction for weeks." 

Corcoran has also picked fights with lobbyists and with President Negron of the Senate as they have butted heads on several new rules that Corcoran instituted under his leadership.  The lobbying changes include no longer allowing House members to text with them during official meetings; not allowing members to enter formal business deals with registered lobbyists; no longer allowing members to fly on a lobbyist-owned plane; and, the creation of a six-year lobby ban when members leave office.  The Sun Sentinel wrote an excellent editorial on Corcoran that can be found here.

Both Scott and Corcoran will be seeking higher office in 2018.  Scott is likely to challenge Senator Bill Nelson, while Corcoran is looking at a wide open Governor's race.

STAND YOUR GROUND ..............

In what may become the first bill up for a vote in both chambers this week, there could be a dramatic change to the STAND YOUR GROUND law in Florida.

House Bill 245 (and it's companion SB 128) aim to place the full burden of proof on the State Attorney.  ASA's and criminal defense lawyers know all too well that the current system places the initial burden on the Defense to establish that SYG should result in the dismissal of charges against your client. 

To read HB 245, you can find that by going here.  Florida Politics covers the story here and the Miami Herald covered it here.

What are your thoughts, not only as an ASA or criminal defense lawyer, but how do you feel as a citizen, that the law might change. As you are pondering your answers to those questions, think about this fact:

According to a recent study published in JAMA, homicides in Florida increased 21 percent — from an average of 82 homicides per month from 1999 to October 2005 to 99 homicides per month from October 2005 to 2014. What happened in 2005 - Florida's first SYG law was passed.  ABC news covered the story here while NBC news covered it here.

With the burden of proof shifting entirely to the State if these bills pass and are signed into law by the Governor, don't you think those numbers will rise even further?

CAPTAIN OUT .....
Captain4Justice@gmail.com





12 comments:

Anonymous said...

The first thing is to check if those extra homicides since 2005 have something to do with Stand Your Ground or self-defense. Let's not get entangled in false correlations or causations.

Anonymous said...

excellent intro to session, thanks.

Anonymous said...

I thought the Florida Cabinet had 4 members: Attorney General Pam Bondi, Commissioner Adam Putnam, Governor Rick Scott, Chief Financial Officer Jeff Atwater, see

http://www.myflorida.com/myflorida/cabinet/

Next Cabinet Meeting:
March 14, 2017 at 9:00 a.m.
Cabinet Meeting Room, The Capitol, Lower Level
Tallahassee, Florida

Anonymous said...

Whether the case involves a self-defense claim or otherwise, the State should be held to a strict burden of establishing a meritorious basis for going forward with any prosecution. Too often are cases pushed which lack either a factual or legal basis or merit, and the Court is reluctant to grant a motion to dismiss. The State’s solution is to offer PDT to resolve cases that should not have been filed initially or dismissed out right. ASA’s are afraid to make a decision because the case was filed, which is ironic considering that most pre-file is often done by a para-legal with minimal oversight. By the way, on accepting PTD in this TRUMP era be very careful it could potentially get your client in invitation from immigration which might result in serious consequences. Now, on the Burden of Proof Bill which you reference, you left out that the bill has an attorneys fees provision which provides that if the State pushes the case and the defense prevails the self defense claim the defense gets up to $200,000.00 in attorneys fees. Hopefully the prevailing party fee provision will be extended to all frivolous prosecutions, similar to a 57.105 in Civil. The latter will certainly emphasize the sense of responsibility prosecutors must have not to prosecute a frivolous or questionable case. Today, more than ever, the consequences of a criminal arrest or prosecution carries serious collateral consequences, and filing and prosecuting a criminal case should be entrusted only to individuals with a proven level of common sense, experience, and empathy, in that order. Entrusting a criminal prosecution to someone who is inexperienced, lacks common sense, empathy, or the courage to make an unpopular decision, and has neither real life or community experience is itself a miscarriage of justice. Perhaps the prevailing party attorney’s fees provision will be a beginning.

CAPTAIN JUSTICE said...


to 8:43 am. Thank you, I will correct that.

to 8:59 am. You're going to have to show me where in either the HB or SB that there is language providing for up to $200,000. I have read both bills and don't see that language. The Amendment language reads:

In a criminal prosecution, once a prima facie claim of
31 self-defense immunity from criminal prosecution has been raised
32 by the defendant at a pretrial immunity hearing, the burden of
33 proof beyond a reasonable doubt is on the party seeking to
34 overcome the immunity from criminal prosecution provided in
35 subsection (1).

The current statute, 776.032 does have a subsection concerning attorneys fees that reads:

(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).

Cap Out .....

Anonymous said...

8:59 - you are a sanctimonious idiot.

Anonymous said...

Aside from agreeing with 4:42 I will state that since SYG came into existence I have on too many occasions had to decline to file a homicide case given the presumption in the statute as opposed to self defense being an affirmative defense. The DTF haunts me especially after discussions with the dead individuals family who obviously don't have the money or the backing of the NRA. Should the legislature proceed with the pre-filed bill changes Florida will go further back in time to the days of the old west where it was shoot first. A sad commentary on a modern day society where life should be precious. SAO5

Anonymous said...

If the State can't prove by a preponderance of the evidence to a judge that a homicide wasn't the result of a self-defense, it shouldn't be filing charges in the first place. This is a good bill.

Anonymous said...

Rump - you are correct about the bills, as filed. The bills as filed do not contain the prevailing attorney's fees provision which was in the pre-filed drafts of the bills. But stay tuned for possible amendments to any number of bills to include a provision for award of attorneys fees in any of the pending bills.

CAPTAIN JUSTICE said...

To 9:27 am.

Captain Justice.

Anonymous said...

Welcome to the Gunshine state!

Anonymous said...

More power to the State! Go Cap!