Restoration of Civil Rights through the Judicial Process

A new bill pending in the Florida legislature would allow a person convicted of a felony to petition the court to restore their civil rights. Those civil rights that would be restored would include both the right to vote and the right to possess a firearm. A felony conviction in Florida comes with a lifetime of consequences including a ban on being able to hold elected office or qualify for an occupational license.

HB903 is entitled the "Economic Redemption and Restoration of Constitutional Rights Act.” HB903 would allow a person with a felony conviction to petition the circuit court for the restoration of civil rights including the right to vote or possess a firearm.

The "Petition for Restoration of Civil Rights" would be considered by a judge after a showing that all terms of the sentence were fulfilled. A prosecutor with the State Attorney’s office would have the right to oppose the petition if the prosecutor believed that the restoration was inappropriate.

After an adverse decision, the petition would be able to reapply after one year. The bill does not apply to the requirements for registration as a sexual predator or a sexual offender.

If the bill is passed and signed into law, it would take effect on July 1, 2018.

The problem with the current state of the law is that only the Board of Clemency (which includes the governor and elected cabinet) has the power to restore a felon’s civil rights on a case-by-case basis. Anyone who applies for a restoration of civil rights in Florida must wait up to seven years to apply. The board has a backlog of more than 20,000 cases. As a practical matter, the process is so burdensome and the chances of relief are so unlikely, that only a small percentage of qualified applicants even apply.

Additional Resources

Civil Rights through the Judicial Process - Visit the Florida Bar website to find a news article published on January 1, 2018, explaining a new measure that would allow the restoration of civil rights through the judicial process.

Automatic Restoration of Civil Rights Citizen’s Initiative - Destined for the November ballot, a ACLU-backed citizen’s initiative, the Voting Rights Restoration Initiative, would provide for an automatic restoration of civil rights and restore voting rights to well over a million Floridians.

A bill to be entitled
       An act relating to restoration of rights; providing a
       short title; amending s. 944.292, F.S.; conforming
       provisions to changes made by the act; creating s.
       944.2925, F.S.; authorizing a person subject to a
       legal disability due to a criminal conviction to apply
       for relief from such disability; providing exceptions;
       providing requirements for such petition; providing
       requirements for hearings on such petitions;
       specifying requirements for a judgment; requiring a
       waiting period after denial of such a petition before
       a new petition may be filed; providing for judicial
       review; providing for taxation of costs; specifying
       that the court must grant or deny a petition in full;
       providing that relief from disability restores a
       petitioner's constitutional and civil rights;
       providing an effective date.
  Be It Enacted by the Legislature of the State of Florida:
       Section 1.  This act may be cited as the "Economic
  Redemption and Restoration of Constitutional Rights Act."
       Section 2.  Subsection (1) of section 944.292, Florida
  Statutes, is amended to read:
       944.292  Suspension of civil rights.—
       (1)  Upon conviction of a felony as defined in s. 10, Art.
  X of the State Constitution, the civil rights of the person
  convicted shall be suspended in Florida until such rights are
  restored by a full pardon, conditional pardon, or restoration of
  civil rights granted pursuant to s. 8, Art. IV of the State
  Constitution, or as provided in s. 944.2925.
       Section 3.  Section 944.2925, Florida Statutes, is created
  to read:
       944.2925  Relief from legal disability.—
       (1)  A person subject to any legal disability, including
  suspension of constitutional or civil rights, due to a criminal
  conviction may petition the circuit court of the county in which
  the person resides or the county in which the person was
  convicted for relief from such disability. This section does not
  apply to the requirements for registration as a sexual predator
  under s. 775.21 or as a sexual offender under s. 943.0435.
       (2)  The petition must contain the following:
       (a)  Documentation showing the convictions or adjudications
  upon which the petitioner's disability is based, the sentence
  imposed and served, and any release granted or other disposition
  of each case.
       (b)  Facts showing the petitioner is a fit subject for
  relief under this section. At a minimum, the petitioner must
  show that he or she has completed or fulfilled all court imposed
       (3)(a)  A copy of the petition shall be served on the state
  attorney for the county in which the petition is filed.
       (b)  The state attorney may object to and present evidence
  relevant to the relief sought by the petition.
       (c)  The petitioner may present evidence and subpoena
  witnesses to appear at the hearing on the petition. The
  petitioner may confront and cross-examine witnesses called by
  the state attorney.
       (d)  A record of the hearing shall be made by a certified
  court reporter or by court-approved electronic means.
       (e)  The court shall make written findings of fact and
  conclusions of law on the issues before it and issue a final
       (4)  The court shall grant the relief sought by the
  petition if the court finds, based on the evidence presented
  with respect to the petitioner's reputation and criminal history
  record, the circumstances surrounding the disability, and any
  other evidence in the record, that:
       (a)  The petitioner has led a law-abiding life since
  discharge or release and appears likely to continue to do so.
       (b)  The petitioner is not likely to act in a manner that
  is dangerous to public safety.
       (c)  Granting the relief is not contrary to the public
       (5) If the final order denies relief, the petitioner may
not petition again for relief until 1 year after the date of the
final order.
     (6)  The petitioner may seek judicial review of a final
order denying relief in the district court of appeal having
jurisdiction over the court that issued the order. The review
shall be conducted de novo.
     (7)  Costs of the proceeding shall be charged as in other
civil cases and taxed to the petitioner.
     (8)  The court must grant or deny the petition in full.
     (9)  Relief from disability granted pursuant to this
section restores the petitioner to all constitutional and civil
rights to the full extent provided by law.
     Section 4.  This act shall take effect July 1, 2018.

How Long Does It Take to Seal or Expunge a Criminal Record in Florida?

Update: Effective October 1, 2019, the rules in Florida to seal or expunge a record just changed. Out of state convictions no longer matter. As a result, FDLE might start taking less time to process the applications. 

According to the FDLE website, as of October 1, 2019, FDLE was still processing April applications which is a six-month delay. But within 6 month, FDLE will begin applying the new rules which will streamline the process.

Read more about Florida's new rules to seal or expunge a criminal record

If you want the process to go as quickly as possible, hire an experienced attorney at Sammis Law Firm. Call 813-2500.

Under the old rules, the process to seal or expunge a criminal history record takes about 6-10 months from start to finish. This article explains why it takes so long to seal or expunge a record. If someone tells you that your record can be sealed or expunged in less time, ask for that promise in writing with a money-back guarantee because it simply can't be done.

The sooner you start the process the sooner it will be completed. But there is no way to jump to the front of FDLE's line to get the certificate of eligibility issued. FDLE will process the applications in the order in which they receive it as explained below.

By hiring an attorney you can make sure each step is done correctly and as soon as possible. When you come to our office, it takes about one hour for us to complete all of the paperwork while you get your fingerprints taken.

The attorneys at Sammis Law Firm in Tampa, FL, take seal and expunge cases throughout the State of Florida. We charge a flat fee of $950 which includes all of the standard fees and costs. 

Included within this price is our promise to contact all of the data-mining companies like mugshot[dot]com and arrests[dot]com to demand that they remove your mug shot from their website. Because we process so many of these requests, we can save you a lot of stress, aggravation, and money when trying to get the mugshot off the internet.

Never pay these data mining companies money to remove the mug shot. Instead, get the record sealed or expunged and make sure the attorney you hire is willing and able to make the demand on your behalf.

Some judges require a hearing before they will sign the order to seal or expunge the record. If a hearing is required in your case, we will attend the hearing for you.

If you are eligible to seal or expunge your criminal record, then contact us to get the process started today. We know how important it is to get it done as quickly as possible. 

Call 813-250-0500 for more information.

Expunging a Criminal Record in Florida

After determining that you are eligible to move forward with expunging your record, the first step in the process is completing the Florida Department of Law Enforcement Application for Certification of Eligibility. We will help you fill out this form so that it is done correctly.

Section A of this application will need to be completed and you must sign the form in the presence of a notary. You can complete this step at our office or we can send you the forms so that you can get it notarized yourself. 

If you come into our office, we will prepare these documents for your signature while you take the fingerprint card to a local law enforcement agency to get the fingerprints taken. The Tampa Police Department is only a few blocks from our office. By the time you get back to our office, all of the other paperwork will be ready for your signature.

Section A of Application

Once Section A has been completed (and while we are obtaining the necessary paperwork and the client is working on getting their fingerprints taken) we then provide the signed application to the State Attorney’s Office for their review and consideration. 

This part of the process provides the State Attorney’s Office with an opportunity to review the application and confirm that the applicant is eligible to expunge the charge or charges listed on the application. 

The normal turn around time for this part of the process takes between five to fifteen business days to complete depending on which State Attorney's Office is handling the request.

Section B of Application
Once your application is returned from the State Attorney’s Office, we check it carefully to make sure that the State Attorney's Office correctly completed Section B.

Common errors committed by the State Attorney's Office include not listing all charges that are eligible to be expunged or listing the wrong reasons for approval or denial. 

Once the application has been reviewed, the next part of the process is to prepare and provide the
Florida Department of Law Enforcement with the required documentation.

This documentation that must be sent to FDLE includes:
  • The completed application (with Section A and Section B completed);
  • The completed fingerprint card; 
  • A certified copy of the final disposition;
  • A check or money in the amount of $75.00 for the application fee (which we pay out of our $950 fee); 
  • A pre-postage paid envelope for the return of your Certificate of Eligibility once processed. 
The seal and expunge attorneys at Sammis Law Firm in Tampa, FL, send these documents via Certified Mail so that we have confirmation that it was received.

This part of the process takes the longest as the turn around time is approximately 5-8 months (from the time the documents are sent to FDLE until the time the certificate of eligibility is returned).

FDLE Takes 5-8 Months to Process the Application

Waiting for FDLE to process your information and provide you with a response can be stressful. No one wants to wait 5-8 months to learn that they are not eligible or that they need to provide additional documentation. An attorney can help you make sure that you are eligible and that everything is done correctly so that there are no further delays in the process.

You can also check the status of the application by checking FDLE’s website to confirm the month being processed. 

For example, if you received confirmation that your documents were received by FDLE in June you can check their website to see what month they are currently processing.

This information can be found at

This article was written on November 22, 2017, and as of today, the FDLE says that it is processing applications from June of 2017. This tells you that it takes at least 5 months just for FDLE to process your application.

If your application was received by FDLE in June and the FDLE website tells you that June applications are being processed, then you can expect to receive your Certificate of Eligibility back within 30 days (assuming all eligibility requirements have been met). 

Once processed, FDLE will provide you or your attorney with a Certificate of Eligibility which includes the charge/charges you are eligible to expunge. There will also be an 8-digit Identification Number listed in the bottom left-hand corner of the page that will need to be provided to the County Clerk’s Office (for the charge or charges you wish to expunge).

Complete the Affidavit to Seal or Expunge

The next part of the process is to complete the Affidavit. The affidavit needs to be notarized and the original will need to be provided to the Court. Once we receive an applicant’s Certificate of Eligibility back from FDLE we will then provide them with the Affidavit. 

While the applicant is completing the Affidavit, the cost amount will need to be obtained from the County Clerk’s Office. For seal and expunge cases in Hillsborough County, your attorney will contact the Expungement and Sealing Unit (ESU) of the Hillsborough County Clerk of the Circuit Court by calling 813-276-8100 ext. 3800. The clerk needs to know the case name, case number, and the FDLE Certificate Number before the costs can be calculated.

Each county in Florida has their own process for obtaining information about the costs for expunging your case. In Hillsborough County, the ESU clerk normally provides us with the cost information within 24-48 hours.

Prepare the Petition to Expunge and Proposed Order

Once costs have been received and the original Affidavit has been completed, it is now time to prepare and Petition to Expunge and the proposed Order. Once drafted, the Petition, proposed Order, original Affidavit, and original FDLE Certificate will need to be provided to the County Clerk’s Office, with a check or money order for the costs, for filing and for the Judge’s consideration.

Once the above documents have been provided to the Judge it normally takes about 2-6 weeks to receive the signed Order Expunging Criminal Record back. The interested parties listed on the order will also receive a copy, once signed by the Judge.

The interested parties include:
  • You (or your attorney’s office if you are represented by counsel); 
  • The State Attorney’s Office for the appropriate county where the arrest or prosecution occurred;
  • The Florida Department of Law Enforcement;
  • Any Arresting Agency;
  • I.D. Section for Sheriff’s Office (this division handles the mugshots).
It is important to remember to serve each of the above with a copy of your Petition, proposed Order, FDLE Certificate, and Affidavit as well as making sure they are listed to receive a copy of the signed Order once signed by the Judge.

Once the interested parties receive a signed copy of the Order, they will begin their office’s procedure for removing your information from their databases. For example, your docket information will be removed by the Clerk once the signed Order is received. Your mugshot will be removed from the Arrest Inquiry once your signed Order is received. Once expunged, this information is no longer a public record.

We suggest that if you need any documentation related to your case that you obtain it while the process is being completed. Once completed, you will no longer be able to access any information related to your case unless you Petition the Court to reopen it.

In order words, before the case is sealed or expunged, be sure to get a certified copy of your final disposition and any other records in the file so you can save them in case you need that documentation in the future. We can obtain these documents for you.

Getting Your Mug Shot Off the Internet

Here at the Sammis Law Firm, our attorneys demand the removal of your arrest/case information from third party sites once your case has been expunged. We ask our clients to provide our office with a list of any and all URL website links for sites that have posted your arrest information.

We tell our clients to wait and not pay these sites for the removal of their information because we can typically get the mugshots taken down at no additional cost to you after the seal or expunge order is signed. 

Although we cannot guarantee the removal of the information from these third-party data mining companies, we have become pretty good at getting them to remove the record, usually within a matter of weeks. 

How Long Does it Take to Seal a Record in Florida? 

The process to seal a criminal history record is very similar to the expunction process. Unlike expungements, when you seal the record your application is not provided to the State Attorney’s Office for their review and consideration.

Instead, the next part of the process is to prepare and provide the Florida Department of Law Enforcement with the required documentation. For this reason, sealing a record takes slightly less time then expunging a record.

It is also important to remember that once your case has been sealed for a period of 10 years, you can then complete the expungement process to have your case expunged. For example, if the Judge signed the Order Sealing Criminal Record on November 22, 2017, then you can then begin the expungement process to expunge your previously sealed case on November 22, 2027.

Because a sealed record is very similar to an expunged record for all practical purposes, most people with a sealed record don't bother to expunge it after 10 years. But at least you know that this opportunity is available under Florida law.

Do I Need an Attorney to Seal or Expunge My Criminal Record?

Do you need a lawyer to seal or expunge your criminal record in Florida? No, you do not need an attorney to seal expunge your record. You can do it yourself if you want to avoid paying attorney fees (although the cost would remain the same). 

Many of the people that hire us, start off trying to do it themselves only to realize they needed an attorney’s help after losing valuable time. This article explains the process and the benefits of having an attorney help you at every stage of the case.

The benefits of hiring an attorney to seal or expunge a criminal record include making sure:
  • you are eligible to seal or expunge the record in the first place;
  • all related cases are sealed or expunged so that nothing is missed (especially when a second case might have a different case number but be part of the same incident);
  • the paperwork is filled out correctly so that no additional delay occurs;
  • all of the agencies that need to seal or expunge the record receive and process the order correctly; and
  • data mining companies take down your mug shot off the internet after the seal or expunge is completed.

Conclusion - Finding a Tampa Attorney to Seal or Expunge the Record

If you need to seal or expunge a record in Tampa, FL, or Hillsborough County, or anywhere in the State of Florida, then contact an attorney at the Sammis Law Firm.

We know you need it done quickly and correctly. Let us put our experience to work for you. We can start the process today.

Call 813-250-0500 to get started.

Can My Juvenile Record Make Me Ineligible to Seal or Expunge?

The attorneys at the Sammis Law Firm help people throughout Florida seal or expunge a criminal history record. We charge a flat fee of $950 which also includes everything need to seal or expunge the record. For your convenience, we also contact data mining companies to demand they take down your mug shot from sites such as mugshots[dot com] or arrests[dot com].

When people call us, they often ask: "Will my juvenile record make me ineligible?" 

The current answer is that if you were "adjudicated guilty" of any of the following offenses in juvenile court, then you are not eligible for the court-ordered process to seal or expunge any other record as an adult. Those offenses include:
  • Assault, as defined in s. 784.011; 
  • Battery, as defined in s. 784.03;
  • Carrying a concealed weapon, as defined in s. 790.01(1);
  • Unlawful use of destructive devices or bombs, as defined in s. 790.1615(1);
  • Neglect of a child, as defined in s. 827.03(1)(e);
  • Assault or battery on a law enforcement officer, a firefighter, or other specified officers, as defined in s. 784.07(2)(a) and (b);
  • Open carrying of a weapon, as defined in s. 790.053;
  • Exposure of sexual organs, as defined in s. 800.03;
  • Unlawful possession of a firearm, as defined in s. 790.22(5);
  • Petit theft, as defined in s. 812.014(3);
  • Cruelty to animals, as defined in s. 828.12(1);
  • Arson, as defined in s. 806.031(1); and 
  • Unlawful possession or discharge of a weapon or firearm at a school-sponsored event or on school property, as provided in s. 790.115.
Currently, if you were adjudicated guilty of one of these offenses, even a misdemeanor, then you become forever ineligible for the once in a lifetime court-ordered process to seal or expunge any other record. 

A bill pending in the Florida legislature would change that, making an exception to this rule if the adjudication of delinquency was for a misdemeanor and more than 10 years had passed.

The Impact of Florida's 2018 CS/SB 298

Florida law currently prohibits a person who has ever been adjudicated delinquent of a misdemeanor specified in s. 943.051(3)(b), F.S., from being eligible to have any criminal history record sealed or expunged. A bill pending in the Florida legislature, CS/SB 298, would allow a person who has not been adjudicated delinquent of a misdemeanor specified in s. 943.051(3)(b), F.S., in the past 10 years to be eligible to seek a sealing or expunction of a criminal history record.

Florida law currently requires a person to have a criminal history record sealed for a minimum of 10 years before seeking an expunction if their criminal history record resulted in a  judgment of acquittal or a not guilty verdict at trial. CS/SB 298, if passed, would also enable a person to seek the immediate expunction of a criminal history record associated with a judgment of acquittal or a not guilty verdict.

If it passed, the proposed legislation would become effective on July 1, 2018, and would increase the number of people eligible to have a record sealed or expunged. 

Additional Resources

2018 CS/SB 298: Criminal History Records - Read more about changes to Florida's rules to seal or expunge a criminal history record and pending legislation to revise the facts that must be attested to by a petitioner in a statement submitted in support of the expunction of a criminal history record so that an adjudication of delinquency for a specified misdemeanor that is more than 10 years old would not make a person ineligible to seal or expunge another record. The bill is currently pending in the Judiciary.

How Long Does it Take to Seal or Expunge the Criminal Record? - Find out why it takes 6-10 months to seal or expunge a criminal record in Tampa or Hillsborough County, FL. Learn more about why you might need an attorney to help you seal or expunge the record instead of trying to do it yourself to save money.

Finding Tampa Attorneys to Seal or Expunge a Criminal Record

If you want to seal or expunge a criminal record through the court ordered process described in Section 943.0582, F.S., then give us a call to determine if you might be eligible. 

We also represent clients in other types of processes to seal or expunge a criminal record including the administrative expunction explained in Section 943.0585, or the juvenile diversion expunction described in Section 943.0585(5).

Call 813-250-0500 to discuss your case.

Attorneys for Backpage Prostitution String Operations in Polk County, FL

If you were arrested for soliciting a prostitute for a lewd act in a Polk County sting operation, then contact an experienced criminal defense attorney at the Sammis Law Firm. We represent clients in the criminal courtrooms in Bartow, FL, by fighting the case aggressively at every stage.

Most of these sting operations involve posting or responding to ads on the "dating" section of the Backpage website found at Many of the sting operations occur at a house in an undisclosed location on the Polk County line in Davenport, FL.

Although many consider "sex workers" to be engaged in the oldest profession, in Polk County, crimes related to prostitution are aggressively investigated and prosecuted. Although these are victimless crimes, law enforcement officers are quick to talk about "human trafficking" even though these cases have nothing to do with human trafficking.

At the Sammis Law Firm, our four attorneys are experienced in asserting the "entrapment defense." The entrapment defense can be asserted anytime law enforcement officers created the crime and entrapped a person to participate when that person was not otherwise predisposed to engage in any prostitution-related crime.

The best results in these cases are getting the charges dropped completely by the prosecutor with the State Attorney's Office in Polk County or dismissed by the judge. If the charges are dropped, dismissed, or reduced to a less serious offense such as "disorderly conduct," then you may qualify to seal or expunge any record of the arrest or prosecution.

Call us at 813-250-0500 for a free and confidential consultation to discuss your case with one of the experienced criminal defense attorneys at the Sammis Law Firm. We fight charges related to "soliciting another to commit prostitution" in the criminal courtrooms in County Court in Bartow, FL, and throughout the greater Tampa Bay area.

Recent Prostitution and Solicitation Sting Operation in Polk County, FL

After a week-long undercover investigation, law enforcement officers in Polk County arrested 277 people for soliciting another person to commit prosecution, offering to commit prosecution, or deriving proceeds from prostitution.

The most recent sting operation was named "Operation No Trick, No Treats" which occurred on or around October 10, 2017, at an "undisclosed" house in Davenport, FL.

The agencies that participated in the prosecution sting ring include:
  • the Polk County Sheriff’s Office; 
  • the Haines City Police Department;
  • the Lakeland Police Department; 
  • the Lake Wales Police Department; and 
  • the Winter Haven Police Department. 
 The most common offenses in these sting operations include:
  • offer to commit prostitution;
  • soliciting a prostitute to commit a lewd act;
  • use of a 2 way device in a felony;
  • remaining in structure for prostitution; and
  • driving proceeds from prostitution.
These sting operations are supposed to target "human trafficking" but really just create and manufacture crime by encouraging men and women to engage in prosecution through very aggressive online solicitations.

The police reports in these cases often say:

"Polk County Sheriff's Office Vice Unit began conducting a human trafficking undercover operation by targeting subjects soliciting prostitution online within Polk County, FL. This operation is intended to locate and rescue victims being trafficked or sexually exploited by unknown suspects."

If that were really the goal, the officers could do a much better job by investigating actual crimes. People that are engaged in human trafficking are almost NEVER caught in these elaborate string operations in Polk County.

This stated purpose announced by the sheriff's office in Polk County is NOT true because the "uncover" officers don't pose as victims of sexual exploitation at all. Instead, the undercover officers pose as independent, financially secure, sophisticated, educated, attractive, and responsible adults who enjoy an unexpected sexual encounter with a new acquaintance.

The fact that money exchanges hand is often the last part of the trap and not the real reason the person accused agreed to meet the undercover detective.

Types of Criminal Charges Related to Prostitution Crimes

When prosecution crimes were investigated during this recent Backpage Escort sting operation in Polk County, the following crimes were charged:
  • 51 arrests for advertising as prostitutes online; 
  • 209 arrests for soliciting undercover detectives who posted ads posing as prostitutes; and
  • 17 arrests for deriving proceeds from prostitution or other offenses. 
During the sting operation in Polk County, undercover officers posed as prostitutes or those soliciting prostitutes by posting fictitious ads online or by creating profiles on several different social media platforms, websites, and mobile phone applications.

In other cases, the undercover detectives responded to profiles and online ads posted by prostitutes. Many of the detectives were targeting transgender people, especially since Backpage now has a "transgender" dating section. The Polk County Sheriff's Office also uses Hispanic and Spanish-speaking undercover officers who pose as prostitutes or johns.

Although Polk County is famous for these sting operations that draw national media attention, many of the people arrested live outside of Polk County or the state of Florida including people vacationing in Orlando.

The Setup of the Sting Operation

In the typical set up for these recent sting operations in Polk County, very attractive undercover detectives posing as a (male or female) (gay or straight) (cisgender or transgender) "john" or "escort" working in an undercover capacity. Traditionally, the female detectives would post fictitious ads online posing as escorts and the male detectives would reply to the escort ads on Backpage. Recent sting operations have focused more on gay, bi-sexual and transgender ads.

Because EVERYONE living in Polk County knows about these string operations, the detectives will often target people living in other parts of the state or people visiting the Orlando area on vacation. As a result, only unsophisticated participants are caught in the trap and actual sex workers and experienced johns known better.

The suspect in these cases will be arrested inside the residence in Polk County, FL, where audio and video recording devices were used to record parts of the investigation. Each suspect is supposed to be read their rights per a Miranda card before a recorded interview is conducted.

In this most recent sting operation for prostitution in Davenport, FL, a total of 31 law enforcement officers and one analyst were involved in the set up including:
  • one captain
  • one lieutenant
  • four sergeants
  • twenty-four detectives 
  • one civilian analyst
This list of participants including two technical services detectives, nine detectives handling and processing evidence and charging documents, four detectives handling take down arrests, two detective working as scribes, four detectives on perimeter surveillance, three detectives handling vehicle impounds, one detective deputy transporting prisoners, one detention deputy sheriff handling suspect book in and one undercover detective for each case.

Entrapment in Soliciting a Prostitute for a Lewd Act

When an unsuspecting "john" replies to a fictitious escort ad, the undercover officers AGGRESSIVELY seeks out a meeting at a nice house in Davenport, FL. The undercover officers will flirt, laugh, engage in small talk, tell stories, and do anything possible to convince the "john" to meet, sometimes during hours of phone calls or text messaging. 

Although the "john" might not be predisposed to actual meet, the Polk County Sheriff's Office has become very good at setting this trap and entrapping the most unsophisticated participants. If you ask me, these are not men who usually engage in such behavior because if they had any experience with an actual prostitute, they would immediately know that these scenarios are an obvious undercover police sting operation. 

As a result of this wide net being cast, only those people unfamiliar with the sex industry are unlucky enough to participate in meeting the pretty lady that is suddenly showing them a lot of attention.

When the "john" arrives at the string operation in Davenport, FL, he will enter the house. Once inside the residence, the undercover officer will attempt to entrap the suspect into soliciting an engagement in protected sexual intercourse or oral sex in exchange for a specific amount of money.

The police report ALWAYS says that there was an agreement for a specific sex act in exchange for a specific amount of money, but when listening to the tapes over the years, we often discover that no real agreement was ever reached.

Then detectives will enter the room and place the "john" under arrest and bring him to second location where he is interrogated. In this room, the pre-Miranda conversations are rarely recorded. Over the years, we have seen many cases in which the detectives go out of their way to make promises and threats before turning on the recorder.

Post-Miranda, many of these suspects break down and confesses under the pressure. Officers are specifically looking for any type of statements that would interfere with an entrapment defense such as "I've done this before" or "I've thought about doing this before."

Although rarely are those statements enough to defeat an entrapment defense that on this occasion the suspect would not have engaged in the activity "but for" the extra efforts of the undercover detective and team of law enforcement officers that manufacture the crime.

Instead of being issued a notice to appear in court so that the suspect can be released at the scene, the Polk County Sheriff's Office always makes a formal arrest and books the suspect into the jail with a mug shot. The Polk County Sheriff's Office then goes out of its way to drum up as much media attention as possible in these cases.

The news media participates in the shenanigans by pretending that these sting operations are for some purpose other than getting publicity for the Polk County Sheriff, embarrassing the accused, and collecting the $5,000 fine, exaggerated costs of investigation, costs of prosecution, court costs, impound fees (because they always impound the suspect's vehicle) and other related expenses. 

Definitions Related to Prostitution

Prostitution is defined as the practice or occupation of engaging in sexual activity with someone for payment. One of the preferred terms for sex workers is "call girl" which often refers to a female prostitute who accepts appointments and has a higher income clientele. Other terms considered derogatory in the sex industry include the word "streetwalker," "hooker," "woman of the night," "working girl," "tart," or "harlot."

More and more, sex workers are advertising online on social media sights such as Facebook or online billboards such as Backpage. Many of these sex workers are moving online entirely by using video and other electronic communications although those crimes are rarely prosecuted.

Should prostitution be a crime? We believe the answer is "no." Law enforcement officers have better ways to spend their resources. Unfortunately, in Polk County, the sheriff's officer creates these sting operations which often entrap people into committing crimes that they are not predisposed to commit.

Additional Resources on Prostitution

Recent Press Release for Prostitution Sting Operation in Polk County, FL - Read the press release dated October 17, 2017, from the Polk Sheriff’s Office News Release on “Operation No Tricks, No Treats” Sheriff's Office New Release. The sting operation involving posting and responding to ads on the Backpage website found at


This blog article was last updated on Friday, January 19, 2018.

Is ATF Coming for your Guns because of a Prohibited Firearm Transactions?

If you acquired or attempted to acquire a firearm from a federally licensed firearm dealer (FFL) and failed the background check, then you might receive a call from an ATF agent after the non approval or conditional non approval. An experienced criminal defense attorney can help you deal with resolving the issue as quickly as possible, including filing an appeal of the non-approval under the procedures outlined in Chapter 11C-8, Florida Administrative Code. We can also speak to any ATF agent that comes looking for your firearms so that you do not end up making statements that can be used against you in a criminal prosecution.

Call an attorney before making any statement to an ATF agent that can be used against you. Better yet, don't take possession of a firearm after a conditional non approval. ATF agents are taking very creative approaches in these cases and their approach can vary widely from one field office to another.

The ATF Agent might also serve you with a letter entitled “Warning Notice of Prohibited Firearm Transaction” from the ATF Resident Agent in Charge. The letter is an indication that the AFT believes you were prohibited from receiving or possessing a firearm because of an indictment, a pending felony charge, a conviction for a felony, an allegation that you are a current user of an illegal narcotic (drug), or other firearm disabilities under Federal Law.

The number of warning notices being issued has increased dramatically. The ATF has recently become more aggressive in investigating possible violations of federal firearm laws, particularly after a person attempts to purchase a firearm from a federally licensed firearm dealer (FFL) and doesn’t pass the background check after a non approval or conditional non approval.

In fact, recent federal grants are funding new "comprehensive gun crime reduction strategies" using ATF agents. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is a government agency responsible for enforcing the firearm laws at the federal level.

If you live in the Tampa Bay area, then an attorney at Sammis Law Firm can help you understand the law so that you avoid any prohibited acts, understand your rights to contest a wrongful action, illegal seizure or forfeiture of your firearm.

Nothing in this article should be considered to be legal advice. If you are suspected of a prohibited firearm transaction, you need a criminal defense attorney to represent you so that you understand whether an illegal transaction actually occurred, how to avoid a further accusation by coming into compliance with the law, or what to do if you have been falsely accused.

Before the ATF agent comes knocking on your door, call us at 813-250-0500 to schedule a consultation to discuss your case.

What is a Federally Prohibited Firearm Transaction?

The "Warning Notice of Prohibited Firearm Transaction" official notifies you that, because of the felony indictment, conviction, or other prohibiting federal firearm disability, Federal law prohibits you from receiving or possessing a firearm or ammunition and from providing false information to an FFL during the acquisition or attempted acquisition of a firearm or ammunition.

For example, 18 U.S.C. § 922[g](1)- (9) prohibits certain individuals from possessing firearms, ammunition, or explosives. The penalty for violating this federal law is ten years imprisonment and/or a $250,000 fine.

Specifically, 18 U.S.C. § 922(g)(1-9) prohibits the following from possessing, shipping/ transporting, or receiving any firearm or ammunition:
  1. a person convicted of a crime punishable by imprisonment exceeding one year (a felony offense);
  2. a person who is a fugitive from justice (this could include having an outstanding arrest warrant or a capias after a failure to appear in court);
  3. a person who is an unlawful user of or who is addicted to a controlled substance (ATF sometimes takes the position that this can be demonstrated by a recent conviction or withhold of adjudication for a drug charge including misdemeanor possession of marijuana or even obtaining a medical marijuana card if the person also makes statements admitting the narcotics use);
  4. a person who has been adjudicated as a mental defective or who has been admitted to a mental institution;
  5. an alien who is unlawfully in the United States or who has been admitted to the United States under a nonimmigrant visa;
  6. a person who has been discharged from the Armed Forces under dishonorable conditions;
  7. a person who, having been a citizen of the United States, renounces his citizenship;
  8. a person subject to a court order that was issued after a hearing in which the person participated, which order restrains the person from harassing, stalking, or threatening an intimate partner or partner’s child, and which order includes a finding that the person is a credible threat to such partner or partner’s child, or by its terms prohibits the use, attempted use or threatened use of such force against such partner or partner’s child (sometimes called an injunction for protection);
  9. a person who has been convicted of any misdemeanor crime of domestic violence (sometimes even if the court did not officially designate the offense as “domestic violence”).

What is Possession of a Firearm?

Under federal law, the possession of a firearm may be either actual or constructive. The term "actual possession" includes holding the firearm in your hand or a bag that you are carrying.

The term "constructive possession" can cover a far broader range of activity. The courts have defined constructive possession to include: knowingly [having] the power and intention at a given time of exercising dominion and control over the object or over the area in which the object is located....” See U.S. v Booth, 111 F.3d 2 (1st Cir. September 1997).

In other words, if you know the firearm is present in your residence, vehicle, or business, and if it can be shown that you have the ability to access and exercise control over that firearm personally or through another individual, then you might be considered to have constructive possession of the firearm. Under these conditions, you could be subjected to new criminal charges.

Prohibitions Against Making False Statements to a FFL

Title 18, Chapter 44 U.S.C., Section 922(a)(6) and 924(a)(1)(A), provide that it is unlawful for any person to make a false statement to a federally licensed firearm dealer (FFL), when acquiring or attempting to acquire a firearm or ammunition.

For example, it is unlawful to misrepresent on a Firearms Transaction Record Part 1 - Over-the-Counter, ATF  Form 4473, that you are not prohibited from receiving or possessing a firearm by answering “No” throughout Question 11, or making any other false representations.

For example, one question provides:

Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance? Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.
If federal law enforcement priorities shift in the future, the ATF could start taking the firearms of anyone who has recently admitted to using marijuana or obtains a medical marijuana card, even if the use of cannabis is legal under state law.

Penalties for a Prohibited Firearm Transaction

Under Title 18, Chapter 44 U.S.C. Sections 922(g), 922(n), 922(a)(1)(A), 924(a)(2), any person under a Federal firearms disability who acquires a firearm or ammunition or who makes a false statement or misrepresentation to a FFL when acquiring a firearm or ammunition may be imprisoned for up to ten (10) years and/or fined up to $250,000.

Consequences of Getting the Warning Notice

If you receive this prohibited firearm transaction notice, then the ATF is taking the position that you are prohibited from receiving or possessing a firearm or ammunition because of your prior conviction or other Federal firearms disability.

Options to Resolve the Prohibited Firearm Transaction
If you are currently in possession of a firearm and/or ammunition that you receive while under Federal firearms disability, then you have three options:

  1. Hire an attorney who can tell the ATF agent where the firearms are located, don’t go to the location until the firearms have been seized by the ATF (or do anything else to “possess” the firearms until they have been seized) and then contest the forfeiture of the firearm and/or ammunition;
  2. Voluntarily provide the firearm and/or ammunition to the ATF or other law enforcement agency and agree not to contest the forfeiture of the firearm and/or ammunition;
  3. Transfer the firearm and/or ammunition, preferably through an FFL, to a third party non-prohibited resident of your State who does not reside in your house and who is not employed by you (this is particularly important if the firearm is expensive); or
  4. Get permission from the ATF to sell (or have someone else sell) the firearm and/or ammunition to a FFL, or arrange for an FFL to sell the firearm and/or ammunition on your behalf.
The Warning Notice does not, in any way, prohibit a federal prosecutor from prosecuting you for any criminal offense related to the unlawful firearm transaction.

Additionally, after you receive the Warning Notice, a future violation is more likely to be investigated by the ATF and prosecuted by a prosecutor with the United States Attorney’s Office.

Additional Resources

Tampa Field Division of the ATF - Visit the website of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Tampa Field Division to learn more about its criminal enforcement efforts. Find information on news from the Tampa Field Division News and Reward Notices.

Appealing the FFL Non Approval under Chapter 11C-8, Florida Administrative Code - Learn more about the procedures to appeal the FFL non approval after an attempt to purchase a firearm.

Attorney to Contest the ATF Seizure or Forfeiture of the Firearm

If an ATF agent recently seized your firearms because of an allegation that you were involved in a prohibited firearm transaction in the Tampa Bay area, then contact an experienced criminal defense attorney at the Sammis Law Firm.

We help individuals who have been wrongfully targeted by the ATF. We also help individuals who only recently learned that they are in violation of federal law and want to resolve the issue under the best possible terms. Call 813-250-0500 to schedule an office consultation to discuss your case.

If the Officer Can't Remember, Then Can The Officer Just Read His Police Report Out Loud to the Jury at Trial?

What happens if the police officer cannot remember anything about a portion of a criminal investigation? For example, in many driving under the influence (DUI) cases in Florida, the arresting officer has a very difficult time remembering the details about how the subject did on field sobriety exercises. This problem is particularly common when there is no video recording of the exercises.

Although some officers pretend to remember after looking at their report, what if the officer just admits that he doesn't remember? In other words, what if the officer says he has no present independent recollection whatsoever and that there is no way to refresh the recollection by looking at the report?

Can the prosecutor just ask the officer to read portions of the police report out loud to the jury as a past recollection recorded under Section 90.803(5)? Especially in misdemeanor cases when the prosecutor are less experienced and the officers are less prepared, the issue comes up all the time.

The answer is "no" and this article explains why.

What is a Past Recollection Recorded?

When the proper predicate is laid, a past recollection recorded is admitted as substantive evidence. Section 90.803(5) provides:

(5) RECORDED RECOLLECTION.—A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.
To lay a proper foundation, the prosecutor would ask the witness the following questions:
  • does the officer now have insufficient recollection to enable the officer to testify fully and accurately? 
  • was a "memorandum or record" created concerning the officer's observations?
  • did the officer once have knowledge about those observations?  
  • was the memorandum or record report made by the officer when the matter was fresh in the officer's memory? 
  • does the memorandum or record reflects that knowledge correctly?

The Police Report isn't a Qualifying Memorandum or Record

Even assuming the prosecutor attempts to lay the proper predicate, the defense attorney should argue that the past recollection recorded exception to the hearsay rule under Section 90.803(5) does not apply to the reading of a police report because the report would not qualify as a "memorandum or record."

First, the term "report" is not included in Section 90.803(5) at all. The term "report" does appear in Section 90.803(8), which provides the public records or reports exception specifically excludes reports made in criminal cases.

Section 90.803(8) provides:

(8) PUBLIC RECORDS AND REPORTS.—Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. The criminal case exclusion shall not apply to an affidavit otherwise admissible under s. 316.1934 or s. 327.354.

This provision shows that the legislature draws a distinction between "records" and "reports," which supports the position that reports are not including within "records" as contemplated by the hearsay exceptions.

Although that same exclusion for police reports (created by the officer concerning his observations in a criminal case) is not specifically included in subsection (5), it is required by Florida law for several reasons.

The court in State v. Donner, 11 Fla. L. Weekly Supp. 976b (2004), explained it this way:

Under this section [Section 90.803(8) for public records and reports], the [officer's] report would not have been admissible since it was a police report, and such report are excluded from the public records hearsay exception. The Florida Supreme Court clearly stated this interpretation in Burgess v. State, where it would not allow admission of a police report since it was hearsay and therefore inadmissible in an adversarial criminal proceeding. 831 So.2d 137, 141 (Fla. 2002). 

The court also cited Professor Ehrhardt, who found that this limitation is "based on the belief that observations by officers at the scene of a crime or when a defendant is arrested are not as reliable as observations by public officials in other cases because of adversarial nature of the confrontation between the police and the defendant." Charles Ehrhardt, Florida Evidence 786 (2003 Ed.).

The court did note that while some statutes provide for the use of a police report in trial proceedings; this applies only when the legislature has expressly permitted such use. Burgess, 831 So.2d at 141. Since no such statute exists which would have expressly allowed [the officer's] arrest report to be introduced, it therefore was inadmissible pursuant to Section 90.803(8). 

Additionally, in Burgess v. State, 831 So.2d 137 (Fla. 2002), the Florida Supreme Court found:
[T]he information contained in police reports is ordinarily considered hearsay and inadmissible in an adversary criminal proceeding. See Bolin v. State, 736 So. 2d 1160, 1167 (Fla.1999). Nor does the information contained in the report in question fall under any recognized exception to the hearsay rule. See §§ 90.801-805, Fla. Stat. (1999). 

So the correct objection for the criminal defense attorney is that:
  • the officer has a lack of personal knowledge (since the officer is relying on hearsay statements instead of his present recollection as he sits on the stand); 
  • the hearsay statements are also "not relevant" since the witness has no recollection that can be refreshed;
  • the words in the police report are "hearsay" and do not fall under the hearsay exception contained in Section 90.803(5) (for the reasons explained above) or any other hearsay exception; and 
  • if the judge finds that the statements are not hearsay because they are not offered for the truth of the matter asserted then they are especially "irrelevant" because what relevant purpose would those statements serve if not for the truth of the matter asserted?
Also, you can't confront a witness about what they can't remember, so I would also add a "confrontation clause" argument.

Strangely, this issue has come up in my last three jury trials. In my last trial, the judge was so frustrated with the prosecutor's lack of preparation and the officer's inability to remember the details, that the court was actually contemplating just letting the prosecutor have the officer read the report.

The court listened to these argument outside the presence of the jury and then changed the ruling and told the jury that he made a mistake because the officer is not allowed to read from a police report when he can't remember what actually happened.

Nothing is more devastating to the case then watching the officer read from a report. Hold the prosecutor's feet to the fire when they try this. Also, by objecting, you are making the point to the jury that the officer can't remember these important details and shouldn't be trusted on any of the details he claims to remember.

Let me know how you handle this issue or whether you have ever seen it come up in trial in the comments below.

Florida’s Stand Your Ground Statute - the Pretrial Immunity Hearing

This article is not intended to be legal advice. If you need legal advice about a criminal accusation involving something that happened in the past, seek out the services of a criminal defense attorney. If you need advice about what might happen in the future, you probably need advice from someone other than a criminal defense attorney.

These areas of the law are not well settled under Florida law and speculation about what the pending litigation might mean for people facing prosecutions if the legislation is passed.

2017 SB 128

Senate Bill 128, proposed in 2017, might change who has the burden of proof during pretrial hearings to evaluate a defendant’s claim of immunity based on a justifiable use of force under Florida’s Stand Your Ground Statute. Florida law currently provides the defendant a right of immunity from criminal prosecution and civil action if the person is justified in using force.

In criminal prosecutions, the courts often determine on a pre-trial basis whether immunity should apply. The current statute is unclear about whether the prosecutor for the state or the defense should have the burden of proof during that pre-trial immunity hearing.

Because of that lack of clarity in the current legislation, the majority of the Florida Supreme Court in Bretherick v. State, 145 So.3d 821 (Fla. 2014) clarified the procedures the court should use. Under that decision, a defendant claiming immunity must prove by a preponderance of the evidence the entitlement to immunity at a pretrial hearing.

In the dissenting opinion, the court concluded that the Florida legislature intended for the state to have the burden of proof at pretrial immunity hearings.

The proposed legislation, 2017 Senate Bill 128, shifts the burden of proof to the prosecution in pretrial hearings to determine whether a defendant is immune from criminal prosecution based on a claim involving the justifiable use of force.

To receive protection, the defendant must file a motion that clearly states the reasons the defendant is immune and alleges the facts on which the immunity claim is based. The bill does not expressly require the defendant be sworn or admit the facts in the motion.

The bill also requires the state to prove its burden beyond a reasonable doubt. The burden of proof of beyond a reasonable doubt is the same burden of proof imposed on the state in the prosecution of criminal cases. Even if the defense loses on a pre-trial basis, the issue of self-defense can also be raised at trial as an affirmative defense.

Senate Bill 128 also provides that the state must prove its burden by the beyond a reasonable doubt standard instead of the lower standards used during other types of pre-trial hearings.

The History of Florida’s Stand Your Ground Statute

In 2005, the Florida Legislature enacted chapter 2005-27, commonly known as the “Stand Your Ground” law. The Stand Your Ground law expanded the common law Castle Doctrine. The new legislation also changed the defender’s common law duty to retreat.

The changes to Florida’s self-defense laws were incorporated into chapter 776, F.S., which applies to the justifiable use of force.

The History of the Castle Doctrine in Florida

The Castle Doctrine dates back to common law. Florida’s Castle Doctrine establishes that when faced with an intruder, a person had no duty to retreat from his or her home. Instead, under Florida’s version of the Castle Doctrine, the defender had the right to stay in the home and protect himself or herself with force. That force can include even deadly force.

Florida’s Stand Your Ground statute in 2015, expanded the Castle Doctrine. The Stand Your Ground provisions extended the “castle” to include more than just a residence. Under Florida’s Stand Your Ground statute, the protections also apply to a dwelling, residence, or occupied vehicle.

In fact, Florida Statute Section 776.013(5), defines a dwelling as a temporary or permanent building or conveyance of any kind, including an attached porch with or without a roof, mobile or immobile, including a tent, provided that it is designed for nighttime lodging.

The term “residence” is defended to include a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

The term “vehicle” means a conveyance of any kind, whether or not motorized provided that it is designed to transport people or property.

When Do Stand Your Ground Protections Apply

The Stand Your Ground statute in Florida also created a presumption that a person within these protected areas has a reasonable fear of imminent peril of death or great bodily harm under the following two conditions:
  • the offender must have entered or be in the process of unlawfully and forcibly entering the dwelling, residence, or occupied vehicle or be attempting to forcibly remove a person; and
  • the defender must know or had reason to believe that an unlawful and forcible entry had occurred or was occurring.
The Stand Your Ground law in Florida does not impose a duty to retreat on a person who acts in self-defense in his or her castle and other protected areas. Under Florida Statute Section 776.032(1), the defender will generally receive a grant of immunity from arrest, criminal prosecution, and civil action when those conditions are met.

When Do Stand Your Ground Protections Not Apply

Under Florida Statute Section 776.013, the presumption does not apply under the following circumstances:
  • if the person against whom defensive force is used or threatened has the right to be in or is a lawful resident of the location and against whom there is no injunction for protection;
  • the person sought to be removed is in the lawful custody or guardianship of the person against whom the defensive force is used or threatened;
  • the person who uses or threatens to use defensive force is committing a crime or using the location to further a criminal act;
  • the person against whom defensive force is used or threatened is a law enforcement officer entering the premises pursuant to an official duty and who identifies him or herself as a law enforcement officer.
In fact, under Florida Statute Section 776.013(4), a person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to intend to commit an unlawful act involving force or violence.
2005 Changes to Florida’s Self-Defense Laws
Under the 2005 changes to Florida’s self-defense law under Section 776.012(1), a person does not generally have a duty to retreat before using force outside of a person’s dwelling, residence, or occupied vehicle.

When acting in self-defense or in defense of others, a person does not have a duty to retreat and may use non-deadly force, if the person reasonably believes the force is necessary to defend himself or herself or another against an imminent use of unlawful force.

Instead, the person may use deadly force, if the person reasonably believes the force is necessary to prevent imminent death or great bodily harm to himself or herself. Under Section 776.012(2), the common law duty to retreat before using deadly force still applies to a person who is engaged in criminal activity or is not in a place where he or she has a right to be.

Standing Your Ground in Defense of Property

For claims involving acting in defense of property, a person does not have a duty to retreat and may use non-deadly force under the following circumstances:
  • if the person believes that the force is necessary to stop a trespasser’s entry on personal or real property other than a dwelling; and
  • the belief is reasonable under the circumstances.

Deadly force may be used if the person reasonably believes deadly force is needed to prevent a forcible felony. The term “forcible felony” is defined to include;
  • any felony which involves the use or threat of physical force or violence against any individual specifically including:
    • treason;
    • murder;
    • manslaughter;
    • sexual battery;
    • carjacking;
    • home-invasion robbery;
    • robbery;
    • burglary;
    • arson;
    • kidnapping; 
    • aggravated assault;
    • aggravated battery;
    • aggravated stalking;
    • aircraft piracy; or
    • unlawful throwing, placing, or discharging of a destructive device or bomb.

See Section 776.08, F.S.

Immunity from Civil Action under Stand Your Ground

Under Section 776.031, a person who uses force in self-defense as authorized under chapter 776, F.S., is justified for those actions and is immune from and any civil action. Under Section 776.032(3), a defendant to a civil action based on a use of force is entitled to reasonable attorney’s fees, court costs, lost income, and all expenses related to the defense of the action if the defendant prevails in a claim of immunity.

Immunity from Criminal Prosecution and the Peterson Hearing

Under Section 776.031, a person who uses force in self-defense as authorized under chapter 776, F.S., is justified for those actions and is immune from criminal prosecution. Under Section 776.032(1), the concept of immunity is supposed to apply to all phases of the criminal prosecution including the arrest, being detained, being charged, or facing a criminal prosecution.

The Stand Your Ground statute is silent on how to procedurally determine the right to immunity before trial. As a result, the procedures for determining when immunity applies have largely been determined by the courts.

The courts have recognized that the procedures for claiming immunity are different than the procedures for asserting an affirmative defense. In many cases, the defense will file a pretrial, adversarial motion and the court will set a hearing on the motion to determine immunity. Peterson v. State, 983 So. 2d 27 (Fla. 1st DCA 2008).

The standard used by some trial courts during the immunity hearing was a showing by a preponderance of the evidence. Even if the court denies the immunity claim, the defense can still introduce the claim as an affirmative defense at trial. Id.

In Bretherick v. State, 170 So. 3d 766, 722 (Fla. 2015), the Florida Supreme Court attempted to clarify the issues by finding that the defense bears the burden of proof in immunity hearings and that the required showing is beyond a reasonable doubt. The dissenting opinion argued:
By imposing the burden of proof on the defendant at the pretrial evidentiary hearing, the majority substantially curtails the benefit of the immunity from trial conferred by the Legislature under the Stand Your Ground law. There is no reason to believe that the Legislature intended for a defendant to be denied immunity and subjected to trial when that defendant would be entitled to acquittal at trial on the basis of a Stand Your ground defense. But the majority’s decision here guarantees that certain defendants who would be entitled to acquittal at trial will nonetheless be deprived of immunity from trial.
Id. at 780.

Additional Resources

Governor’s Scott’s Task Force on Citizen Safety and Protection - The task force was convened by Florida Governor Rick Scott for the purpose of reviewing Florida’s Stand Your Ground law. A detailed report was issued by the task force on February 21, 2013, which was before the Florida’s Supreme Court Decision in Bretherick. The report found that all persons who are conducting themselves in a lawful manner have the right to defend themselves and to stand their ground when attacked.