Gainesville Personal Injury, Divorce and Alimony Attorney

Criminal Assault, the Threatened Use of Force and Warning Shots

In the realm of criminal cases one way a defense attorney can protect a client is to argue self-defense. Some years ago, there were reports of a ‘Warning Shot Bill’ that would allow Floridians to fire a warning shot. There is no law that specifically ‘allows a warning shot’. What in the stand your ground law caused the confusion that has me answering similar questions years later?

Initially, the stand your ground law in Florida was silent as to whether a threat to use force was included. That meant that people, who chose to make a threat to use force and would have been immune from criminal prosecution had they actually used force, were instead being sent to prison. The law did not allow for immunity from prosecution for threats, just the use of force. For example, a person who killed an aggressor could be immune from a murder prosecution but in the same situation, having the restraint to not kill would send that same person to prison.

Thankfully, that omission was filled in 2014. The Legislature found that “persons have been criminally prosecuted … and have been sentenced to mandatory minimum terms of imprisonment for threatening to use force in a manner and under circumstances that would have been justifiable under chapter 776, Florida Statutes, had force actually been used.” Therefore, the legislature, added the words “or threatening to use” and “or threatened use” to the provisions of law related to the justifiable use of force. They did not add the words “warning shot(s)”. In my opinion, the law will NEVER say that a person can fire a warning shot, but one day it may say that a person cannot.

The law in threatening or using deadly force is generally that a person is justified only if they reasonably believe that such conduct is necessary to prevent the imminent commission of a forcible felony. “Forcible felony” is defined as “treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.”

Whether a warning shot is justified is for the judge or jury to decide. Every case is different, and no lawyer can guarantee what a trial judge or jury will eventually decide. Criminal and civil cases involving the use or threatened use of deadly force require significant attention. To hire a lawyer, please click, call, text (352) 371-9141 or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Alimony / Spousal Support in a Florida Divorce

In some divorce cases, alimony can be awarded to a former spouse that is in need of spousal support if the paying spouse has the ability to pay. Alimony is considered after equitable distribution. The court may grant alimony to either spouse. The requesting spouse must demonstrate a need for alimony and the ability of the other spouse to pay alimony.

The need and ability to pay are developed through the discovery process. Each party to a divorce has an ongoing discovery obligation and the right to obtain information about the opposing spouse’s income, assets, debts and relative financial circumstance.

Florida divorce law provides for rebuttable presumptions concerning the length of the marriage for purposes of determining alimony. A short-term marriage is a marriage of less than 7 years, a moderate-term marriage is a marriage lasting greater than 7 years but less than 17 years, and a long-term marriage is a marriage having a duration of 17 years or greater. The length of a marriage is the period of time from the date of marriage until the date of filing of a Petition for Dissolution of Marriage.

The divorce court will analyze the relevant factors to determine the proper type, duration and amount of alimony. There are four (4) types of alimony.

“Bridge-the-gap” alimony is to assist the receiving spouse transition from being married to being single and addresses short-term needs. There are limits as to the length and conditions of a bridge-the-gap alimony award.

“Rehabilitative” alimony is awarded to assist a spouse in establishing self-support through education, training or work experience to develop employment skills or credentials. Rehabilitative alimony requires a specific rehabilitative plan that places expectations upon the alimony recipient.

“Durational” alimony is when permanent periodic alimony is inappropriate and lasts for a determined period of time following a short or moderate term marriage or a long term marriage when there is no ongoing need for permanent support. There are limitations as to the period of time and modifications of an award of durational alimony.

“Permanent” alimony provides for the needs and to some extent the lifestyle established during the marriage. The recipient should lack the financial ability to meet the necessities of life following a dissolution of marriage. There are limits as to when a court awards permanent periodic alimony.

There is no formula and every case is unique unto itself. Everyone has rights and should know them and use them. To hire a divorce and alimony attorney, please click, call, text (352) 371-9141 or fill out the form. We will ensure there are no conflicts and charge a consultation fee prior to meeting with a lawyer.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Leaving The Scene Of Crash Involving Death – Actual Knowledge Required

The criminal traffic charge of Leaving the Scene of an Accident (LSA) or Hit and Run from a crash involving a death is a serious felony.

An appellate court considering a case of leaving the scene of a crash involving death, addressed the issue of whether the jury instructions should require that the driver had to have actual knowledge of the crash or should read that the accused knew or should have known about the crash. There is a big difference between the two.

Even though the Florida Supreme Court has ruled that actual knowledge of a crash is a required element, the driver in that case, did not dispute the fact that a crash had occurred. Instead, she claimed to have believed at the time that she had hit a traffic cone or barrel. Disputing what was struck means that she admitted having actual knowledge of the crash and then appealed claiming actual knowledge was an issue. This is another example that the only thing media has correct is that anything said or done will be used against the accused. She admitted the crash; the actual knowledge requirement was upheld but that didn’t help the Appellant who admitted knowledge of the crash.

The minimum penalty for hit and run or LSA with a death is four (4) years in prison and a three (3) year revocation of the driving privilege. The revocation period of the driver’s license does not start until the defendant is released from prison. (Read more about Hit and Run – Leaving the Scene of an Accident). These are serious cases. Normally, a person accused will also have to consider hiring an expert to reconstruct the accident. It is imperative that you hire a lawyer and expert with experience litigating or taking these accident cases to trial.

If you or a loved one is accused of leaving the scene, click, call, text (352) 371-9141 or fill out the form to hire a criminal traffic attorney.

Gainesville (352) 371-9141

Ocala (352) 694-4529