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      SelfDefenseFlorida.com was designed to bring awareness to the many serious problems with self-defense laws in Florida today. It is now impossible to get a fair trial in Florida in any case involving self-defense; there is no longer any due process of law. Between flaws in the laws themselves, sections 776.013 and 776.012 (2005) Florida Statutes, and especially in the jury instructions, the jurors in Florida will never hear, or read, the correct law on self-defense. (See: Legal Analyses link).

     Mr. Daiak testified that he believed that someone was breaking into his home, at one-in-the-morning, during Hurricane Frances, on September 5, 2004 in Holiday, Florida. He yelled and screamed at them to go away, then in fear and desperation, he fired two warning shots from his legal revolver into his sofa and one of his bookcases. The unseen intruders fled into the hurricane night, into a night where thousands of homes, two blocks away (but not Mr. Daiak's concrete-block home), were under mandatory evacuation orders, as the winds of Hurricane Frances neared the 40 mile-per-hour mark at which all police response would cease. Not “martial law,” but “no law;” you would be on your own. The State’s N.O.A.A. hurricane map showed 39 M.P.H. winds. It turned out to be Pasco deputies; no patrol cars, lights, sirens; no warrant when they opened my door “to see better inside,” no crime; no reason for me to expect anyone except hurricane home-invaders. (See: Re-Statement of Facts link).

 

     Mr. Daiak was a 52-year old citizen, a lawyer from the University Of Florida College Of Law (1994); and had been an International Petroleum Economist for the Department of Defense, buying crude oil and military jet fuel. He moved to Florida in 1980 where he opened and operated a retail picture-framing store; then became a real-estate broker,before starting law school on a merit scholarship (top 2% LSAT) at 38 years old. He is now "Unknown Prisoner No. C00407," imprisoned for twenty years, mandatory, for firing two warning shots into his sofa to avoid harming the persons that he believed were breaking into his home, at one-in-the-morning, during Hurricane Frances.




    



    




    

       On a personal note, writing from prison, 2 years into a 20-year mandatory-minimum prison sentence, for firing a warning shot into my sofa as unknown intruders were breaking into my home at one-in-the-morning, during a hurricane; unknown intruders who never saw me, or a gun (“In fear of what?,” said the first advisory judge in finding no probable cause; “ there’s no indication he pointed a gun at the deputies; they heard a gunshot inside the house, that’s it.”  (It turned out to be Pasco County, Florida, deputies, as I found out 2 days later; who had no warrant, no patrol cars, no sirens, loudspeakers, horns, or flashing lights, no headlights; nothing to let me know that it was anyone except hurricane looters at one-in-the-morning on 5 September 2004, in Holiday, Florida.

 

            No Grand Jury.  Only 6 trial jurors.  And horribly bad standard self-defense jury instructions, instructions presumed by 600 circuit court judges to be correct instructions on the Florida laws of self-defense:

 

              “The “defense of home” jury instructions, deleted, replaced by a doubly-qualified instruction (“not engaged in an unlawful activity,” and “in a place he has a right to be”) of F.S. 776.013 [2005] (which doesn’t, shouldn’t, even legally apply to an act in 2004), which only applies to “any other place [i.e., other than a dwelling…].”

 

              While I testified that I believed that someone “was in the process of unlawfully and forcefully entering” my “home,” the jurors were only instructed on half of F.S. 776.013(1), that my “presumption of fear” would only apply after someone already “had unlawfully and forcibly entered,” the past-tense.

 

              My jurors never heard the 8 vital words added to F.S. 776.012 in 2005, that added “and does not have a duty to retreat,” before an “imminent” threat, as “imminent” as someone believed to be breaking into your home on a hurricane night.

 

              The jurors never heard that my F.S. 776.013(1)’s “presumption of fear” would apply if I had a reasonable fear of imminent peril of  death; an omission made much worse when the prosecutor twice told the jurors that I should have remained in my bedroom, and fired a warning shot from my bedroom instead of going to the front door of my home to prevent someone from breaking into my home on a hurricane night.  Did a fear of imminent peril of death only apply to intruders at my front door, so that, as  instructed, I would have to wait until intruders were at my bedroom door, already in my home, before I would, could, have a presumption of fear of “death” itself, not fear of “peril of” death?  There is a difference; “peril of” expands the right geographically beyond striking distance.

 

              And not a single word to jurors, in my, all standard self-defense instructions, that you would be “justified in using deadly force” (as F.S. 776.012(2) includes), if you had the “presumption of fear” in F.S. 776.013(1).  Instead, my jurors, all Florida jurors, are only instructed that the “presumption of fear” gives “no duty to retreat,” but my jurors never heard that F.S. 776.012(2) gave me a right to use deadly force in self-defense, as a result of my “presumption of fear.”  And that’s not the law, and not enough to tell a jury about Florida’s laws of self-defense.

 

              So – no Grand Jury, only 6 trial jurors; no jury instructions on penalties (contrary to the law, Fla. Stat 918.10 [1945]; no final closing argument (taken away in 2006, after 150 years of use by Florida defendants); and as in 75% of all appeals in Florida, no opinion on appeal, drawing the lead curtain of appellate silence across Florida.

 

            20 years in prison for a warning shot into my sofa, and one into one of my bookcases (both backed by 8” concrete walls,  warning shots designed to let the perceived night-time, hurricane home-intruders know that I was armed, and would defend myself, hearth and home and family, against unknown persons breaking into my home, at night, on a hurricane night; with no cars, no patrol cars, lights, sirens, or loudspeakers to alert me that the intruders were deputies. But, as I found out 2 days later, from the hospital, after the SWAT team beat me, after they bombed their way into my home at 3:30 am, without a warrant, it was deputies sent to “help me” with machine-guns drawn when they opened my front door at 1:07 am, without a warrant, some 56 minutes after they, wrongly, thought there was a man with a gun to his head; when I had just been simply checking my revolver, after taking it out of my safe, to prepare for a hurricane night.

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TRANSCRIPTS EXCERPTS

 

 

THE COURT:  All right, please proceed. 

 

        5   BY MR. SHAHAN:

 

         6       Q.   Mr. Daiak --

 

         7       A.   Yes.

 

         8       Q.   -- if you had known this these people outside,

 

         9   the voices were the police that night, what would you

 

        10   have done?

 

        11       A.   I would have gone outside and talked to them;

 

        12   say, "Hi, guys, what's up?"  I've always gotten along

 

        13   well, you know, with police guys all my life.  You get to

 

        14   know them personally, most of them have really funny

 

        15   stories, and you share an interest in shooting, you know,

 

        16   target range.

 

        17            MS. VERGOS:  Judge, I'm going to object,

 

        18   non-responsive.

 

        19            THE COURT:  Overruled.

 

        20            THE WITNESS:  No, I have nothing to hide.  I

 

        21   like them.  They lead an interesting life.  Again, I know

 

        22   them, you know, from gun ranges.  I'd be at a gun range

 

        23   in -- like Pinellas County SWAT Team would be on their

 

        24   own time doing practicing with different weapons, and I'd

 

        25   go over and ask them questions about weapons and, you                                                        

 

 

 

         1   know, just gun talk.

 

         2   BY MR. SHAHAN:

 

         3       Q.   Next question.  At any time that night, did

 

         4   anyone identify themselves to you as a law enforcement

 

         5   officer?

 

         6       A.   No, sir.

 

         7       Q.   Not by words?

 

         8       A.   No, sir.  No, sir.

 

         9       Q.   Did you see law enforcement uniforms before you

 

        10   shot?

 

        11       A.   I saw nobody.  I wanted them out of the house

 

        12   with my voice; I didn't want to confront them; I didn't

 

        13   know what was there.  I wanted to protect myself.

 

        14       Q.   Did you ever say die, die, die?

 

        15       A.   I don't -- no, no.  I might have said, and you

 

        16   know, the most I said is get the "F" out of my house, you

 

        17   know, just using my voice to try to get them, and they

 

        18   didn't get out immediately.  And then I might have said,

 

        19   if you don't get out of my house, you're gonna die.  You

 

        20   know, implying that I have a weapon, or faking.  You have

 

        21   a choice, get out of my house or you've committed a

 

        22   felony, and you're gonna --

 

        23            MS. VERGOS:   Judge, I'm going to object.

 

        24            THE COURT:  Sustained.

 

                                                               664

 

 

 

         1   BY MR. SHAHAN:

 

         2       Q.   Did you ever use the word "police" in your

 

         3   language, or sheriff in your language?

 

 

         4       A.   No, no,  I had no idea who was out there

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Joe F. (JJ) Daiak, C00407; Sumter C.I.; 9544 County Road 476B; Bushnell, FL  33513