Yaqubie stabbed and killed someone. Own our Richard Hersch came to court on behalf of Yaqubie armed with self defense. Under Florida's new self defense statute, the defendant is entitled to seek immunity from prosecution pursuant to section 776.032 Florida Statutes. Hersch made such a motion.
Enter Judge Trawick, who treated the motion as a "c(4)" motion to dismiss. Finding that there were material facts in dispute, Trawick denied the motion.
"We'll just see about that" said Hersch (or words to that effect.) He stood his ground and took Trawick up on appeal.
Enter the 3rd DCA and Judge Wells who said that the proper standard for such a motion for immunity was enunciated in Velasquez v. State, 9 S0. 3d 22 (Fla. 4th DCA 2009) which held that the trial court must determine by a preponderance of evidence whether the defendant acted in self defense and is thus immune from prosecution.
What else do you need to know? That the court cited with approval other courts in holding that the current status of self defense in Florida is that the statute is a true immunity provision and not an affirmative defense and as such the trial court is required to resolve the disputed facts and issues to see if immunity is applicable. Affirmative defenses are passed on to the jury to resolve while true immunity issues remain the providence of the trial court.
This is a significant distinction that any competent criminal practitioner must know.
There's another part of this decision reversing Judge Trawick for partially granting a motion to dismiss and reducing the charge from second degree murder to manslaughter. But that part of the decision is old hat- a c(4) motion tests the sufficiency of the charges and not whether the state can secure a conviction at trial, blah blah blah.
The case was remanded for an evidentiary hearing and for Judge Trawick to apply the correct standard.
It is a nice win for Richard Hersch on a relatively new area of the law.
And for that Richard and his firm receive the coveted "well done" from Rumpole.