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Legal Analyses

Legal Analyses

     Let there now be no doubt that the current self-defense laws and jury instructions in Florida deprive all defendants of their right to use force in self-defense, if they are attacked in their own home. The unqualified "defense of home" instruction was deleted in 2006 (In Re Jury Instructions in Criminal Cases, 930 So.2d 612, 616 (Fla 2006), replaced by absolutely nothing at all. This Second District Court of Appeals itself pointed out that section 776.013 (3) does not apply to one's home, but only to "any other place [i.e., other than a dwelling, residence, or vehicle]..." (Behanna v. State, 32 Fla. Law Weekly D-2909, 2910 (b) (Fla. 2nd DCA Dec. 7, 2007); and the Fourth DCA has held that the qualifying phrase, "not engaged in an unlawful activity" (Section 776.013 (3) was fundamental error; Novak v. State, 33 Fla Law Weekly D-431 (Fla 4th DCA Feb 6, 2008). The Novak court also went out to hold that "it is unreasonable to equate a failure to object to a standard jury instruction as "invited error"...Or other than fundamental error," Novak at D-432.

     It is only section 776.013(1) that deals with self-defense in one's home, yet the jury instructions for section 776.013(1) fails utterly to permit any use of force in self-defense in one's home; instead only instructing on a "presumption of fear" and a "no duty to retreat," but not a single word to the jury about any right to use any force in self-defense in one's home. Furthermore, the jury instructions inexplicably deleted the clause "was in the process of unlawfully and forcefully entering," a break-in in progress, from section 776.013(1).


Self-Defense in Florida, 2008

     The 2005 changes to the laws of self-defense in Florida, and the 2006 changes to the jury instructions on the justifiable use of force, have taken away the common law doctrine of the “home is your castle defense” from the jury. The new 3.6 (g) jury instruction is fatally flawed, allowing the use of deadly force in an instruction for the Justifiable use of Non-Deadly Force.

Top 30 Jury Instruction Errors

More Jury Instruction Errors

Judgment of Acquittal

      There are five (5) reasons why a Judgment of Acquittal should have been granted by the Trial Court: 1.) The State failed to prove an assault had occurred. 2.) The State failed to prove an aggravated assault had occurred. 3.) The State failed to prove Mr. Daiak had actual knowledge of Law Enforcement Officers ("L.E.O. ") 4.) The State failed to prove the L.E.O.'s were in the lawful performance of their duties, 5.) The State failed to disprove Mr. Daiak's theory of self-defense.

"Whether or Not"

     "Whether or Not" the defendant was legally justified in his use of force in self-defense, the jury instructions were fundamentally, and fatally, flawed.

Trial Errors

      Judgment of Acquittal The DCA should give me a JOA because the state cannot prove, and in fact, conclusively disproves, that the required element is met, that “the LEOs were in the lawful performance of their duties,” when they opened my front screened entry door, without a warrant, in a non-arrest scenario, at 1:07 am, some 56 minutes after the initial police response at 12:11 am. 56 minutes cannot be an “exigent circumstance” to negate the need for a warrant, as required by the Fourth Amendment, and Payten vs. New York.

Florida Statutes_Justifiable Use Of Force 776.013 and 776.012

       776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.— 776.012 Use of force in defense of person

Novak v. State, Brief

       The defendant challenges the former standard jury instruction on self defense in this appeal. He argues that fundamental error was created when the trial court instructed the jury on self defense. We agree and reverse.

Novak v. State Amended Brief

       Point 1. Fundamental error occurred when appellant was convicted of the uncharged, uninstructed and nonexistent offense of aggravated battery with a firearm . . . . . . .(21) Point 2. The justifiable use of force instruction is fundamentally flawed . . . . . .(30) Point 3. The trial court erred in admitting testimony that there were bullets in the gun, including one chambered . . . . . . (36) Point 4. The instructions improperly negated the defense of Justifiable use of non-deadly force . . . . . . . .(40)