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Motion to Dismiss : “Stand Your Ground” Immunity

Motion to Dismiss : “Stand Your Ground” Immunity

150 150 Cohen, Bradshaw, Rothstein & Klein

DEFENDANT, by and through her undersigned attorney and pursuant to Section 776.032, Washington DC Statutes (2011), and Rule 3.190(c)(4), Washington DC Rules of Criminal Procedure, moves this Honorable Court to: (1) declare that Defendant is immune from further prosecution in the above-styled cause, and (2) dismiss the criminal Information filed herein.  In support of this Motion, Defendant states as follows:

  1. On or about April 11, 2011, Linda Sewell (Mrs. Sewell), the alleged victim in the above-styled cause, unlawfully and forcefully entered Defendant’s residence, located at 5336 Fictitious Street, Apartment 301, Washington DC, Palm Beach County, Washington DC, 32277.
  2. At all times material, Defendant used only defensive force to repel Mrs. Sewell’s advance into Defendant’s residence.
  3. Mrs. Sewell had no right to enter or be present in Defendant’s apartment, and was not a lawful resident of Defendant’s apartment.
  4. Based on the facts presented in the above-styled case, Defendant asserts that she is immune from criminal prosecution pursuant to Section 776.032, Washington DC Statutes (2011). 5. Section 776.032 was created by the Legislature to establish a true immunity and not merely an affirmative defense.  Peterson v. State, 983 So. 2d 27, 29 (Fla. 1st DCA 2008).  When immunity under this law is properly raised by a defendant, the trial court must decide the matter by confronting and weighing only factual disputes.  The trial court may not deny a motion simply because factual disputes exist.  A defendant may raise the question of statutory immunity pre-trial and, when such claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that immunity attaches.  Id.
  5. In Gray v. State, 13 So. 2d 114 (Fla. 5th DCA 2009), the Fifth District Court of Appeal adopted the procedures outlined above in Petersen, and concluded that the right to immunity from criminal prosecution afforded by Section 776.032 (commonly known as the “stand your ground law”) is to be determined by the trial court after an evidentiary proceeding in which the criminal defendant has the burden of proof by a preponderance of the evidence.  Id. at 114.

WHEREFORE, Defendant moves this Honorable Court to declare that Defendant is immune from further criminal prosecution in the above-styled cause and to dismiss the criminal Information filed herein.