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Florida's "Stand Your Ground" Law Now Being Scrutinized

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kokopelli
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15 Aug 2018, 2:12 pm

Here's an article about the arrest and providing some detail.

https://www.wkrn.com/news/florida-shooting-man-arrested-in-stand-your-ground-case/1372482369

From the article regarding some of the previous instances:

Quote:
In court documents, McCabe and Pinellas sheriff’s Detective George Moffett cited three other drivers who said Drejka threatened them during confrontations that preceded his run-in with McGlockton. Two of them said he displayed a gun.

A black man who drives a septic truck told Moffett he parked in the same handicapped-accessible spot three months before McGlockton’s shooting, the documents show. The man said Drejka began yelling at him and said he would shoot him. The driver said he left, but as he pulled away Drejka shouted racial slurs. The man’s boss told Moffett that Drejka later called, telling him “that he was lucky he didn’t blow his employee’s head off.”

In separate 2012 cases, drivers reported that Drejka waved a gun at them during road rage confrontations. In both cases, officers stopped Drejka and found a gun in his car, but he denied showing it to the other drivers.
An affidavit about all this is on-line and makes pretty interesting reading.



kokopelli
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15 Aug 2018, 2:14 pm

LoveNotHate wrote:
kokopelli wrote:
It should be noted that the shooter has been charged and could possibly spend the rest of his life in prison.

It's only a "manslaughter".

A jury with have to decide whether it is first degree or second degree manslaughter.

The maximum of second degree is 15 years.

The maximum of first degree is 30 years.

"If convicted, Drejka faces up to 30 years in prison"
https://abcnews.go.com/US/shooter-flori ... d=57151343


It may be manslaughter, but according to an attorney who posted remarks about this elsewhere, under some Florida statutes he faces possible life imprisonment. I don't know which statutes the attorney was talking about, but I assume he'd had previous convictions before.



kokopelli
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15 Aug 2018, 2:20 pm

From https://legalinsurrection.com/2018/08/manslaughter-charges-filed-in-florida-handicap-parking-spot-shooting//#more:

Quote:
Update, just reading the charging document closely now, and see Drejka was charged under Florida Statute §775.087(1)), Florida’s so-called “10-20-Life” mandatory minimum sentencing law, the one that caught up Marissa Alexander. I’ll discuss the details of this in more detail in a future post, but in effect it means that if convicted under that provision of the law Drejka is looking at life in prison, even though charged “merely” with manslaughter rather than murder, because manslaughter is a first degree felony and this killing involved the use of a firearm.


The affidavit I referred to earlier is at the bottom of that page.



kokopelli
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15 Aug 2018, 2:24 pm

Here's the text of the law from Florida regarding the sentencing:

Quote:
775.087 Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence.—

(1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:

(a) In the case of a felony of the first degree, to a life felony.
(b) In the case of a felony of the second degree, to a felony of the first degree.
(c) In the case of a felony of the third degree, to a felony of the second degree.
So my assumption that it involved previous convictions was wrong. All it takes is one.



LoveNotHate
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15 Aug 2018, 5:52 pm

kokopelli wrote:
(1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:

You missed an important criteria.

" except a felony in which the use of a weapon or firearm is an essential element"

He's being charged with a felony in which a firearm is an essential element, so what you cite is not relevant.


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auntblabby
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15 Aug 2018, 6:13 pm

they will make a convenient example out of him. he's done.



Drake
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15 Aug 2018, 6:58 pm

Drake wrote:
It's a really interesting case, but also a sad one. From an article I read it sounds like the law was misapplied rather than this man is protected under the law. So I expect charges to eventually be brought against him.

So, as I predicted, it has thankfully come to pass.

Image

https://en.m.wikipedia.org/wiki/10-20-Life

So, it seems Florida not only gives you a lot of leeway for carrying and lawfully using a gun, but has the exact opposite if you use a gun outside those lawful limits. Quite an interesting system. That certainly would be a very powerful deterrent against trying to engineer situations where you can shoot someone and be protected under the law.



kokopelli
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15 Aug 2018, 7:27 pm

LoveNotHate wrote:
kokopelli wrote:
(1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:

You missed an important criteria.

" except a felony in which the use of a weapon or firearm is an essential element"

He's being charged with a felony in which a firearm is an essential element, so what you cite is not relevant.


I saw that and think that you are misinterpreting what that means.

As I understand it, what constitutes an "essential element" of the crime are the things that the prosecution MUST prove for a conviction. That is, they must show an intent to kill the victim. He clearly had that at the moment he pulled the trigger -- the pull of the trigger was not an accident. They must show that he caused the death of the victim. I think that the use of a firearm was a way to carry out the killing of the victim, not an "essential element" of the crime itself.

I may be wrong on this, but if I am, then the State Attorney would not have charged him under that section.



kokopelli
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15 Aug 2018, 7:46 pm

In other words, the prosecutor must prove each and every essential element of the crime to the jury. For a manslaughter charge, that would be things like an intent to kill the person as well that he actually did kill him. The method of the killing will certainly be an issue in court, but it is not an "essential element".

Suppose there was a crime called "handgun manslaughter" to cover the killing of someone by use of a handgun. Then the use of a handgun would be an essential element of the crime. The prosecutor would have to show not only intent to commit the crime and that the person did cause the victim to die, but he would also have to show that the person did so with a handgun. If the defendant killed the victim, but did so with poison, then it wouldn't be a crime of "handgun manslaughter" because he murdered him with poison, not the handgun. Similarly, if the victim was killed with a sword, it wouldn't be a crime of "handgun manslaughter" even if there was a handgun present. Even more, if the victim was killed by a rifle or a shotgun, then it wouldn't be a "handgun manslaughter" because it wasn't done with a handgun.

A charge of manslaughter does not specify the manner in which the victim was killed. The prosecutor has to prove that the defendant had the intent to kill the victim and he must prove that the defendant did something to cause the killing. The particular manner in which the victim was killed is not an essential element that must be proven by the prosecutor.

Therefore, that the defendant killed the victim using a handgun does not make using the handgun to be an essential element of the crime.



Last edited by kokopelli on 15 Aug 2018, 7:49 pm, edited 1 time in total.

thoughtbeast
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15 Aug 2018, 7:48 pm

kokopelli wrote

Quote:
As I understand it, what constitutes an "essential element" of the crime are the things that the prosecution MUST prove for a conviction.


That is correct. Florida has laws that make it a crime to shoot into a car or to shoot into a building. Florida courts have ruled that "shooting" means the use of a firearm. Someone who is charged with shooting into a car would not be eligible for the sentence enhancement, the logic being that the legislature has already determined the penalty in that particular case.

See: JEFFERSON v. STATE:

Quote:
Before Bradford, the first district held in Horn v. State, 677 So.2d 320 (Fla. 1st DCA 1996), that the use of a firearm was a necessary element of shooting at an occupied vehicle in violation of section 790.19, Florida Statutes (1993).   The third district has also held that the use of a firearm is a necessary element of shooting into an occupied vehicle.  Jones v. Singletary, 621 So.2d 760 (Fla. 3d DCA 1993).


Now, with regard to manslaughter. The use of a firearm is not an essential element of manslaughter. Manslaughter can be perpetrated in many ways that do not use a firearm. If A pushes B off a cliff, or if A stabs B with a knife, then A can be charged with manslaughter.

Therefore you are correct and sentence enhancement is applicable.



kokopelli
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15 Aug 2018, 7:53 pm

thoughtbeast wrote:
kokopelli wrote
Quote:
As I understand it, what constitutes an "essential element" of the crime are the things that the prosecution MUST prove for a conviction.


That is correct. Florida has laws that make it a crime to shoot into a car or to shoot into a building. Florida courts have ruled that "shooting" means the use of a firearm. Someone who is charged with shooting into a car would not be eligible for the sentence enhancement, the logic being that the legislature has already determined the penalty in that particular case.

See: JEFFERSON v. STATE:

Quote:
Before Bradford, the first district held in Horn v. State, 677 So.2d 320 (Fla. 1st DCA 1996), that the use of a firearm was a necessary element of shooting at an occupied vehicle in violation of section 790.19, Florida Statutes (1993).   The third district has also held that the use of a firearm is a necessary element of shooting into an occupied vehicle.  Jones v. Singletary, 621 So.2d 760 (Fla. 3d DCA 1993).


Now, with regard to manslaughter. The use of a firearm is not an essential element of manslaughter. Manslaughter can be perpetrated in many ways that do not use a firearm. If A pushes B off a cliff, or if A stabs B with a knife, then A can be charged with manslaughter.

Therefore you are correct and sentence enhancement is applicable.


Thank you. It's always nice to correct about something on my birthday.



auntblabby
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15 Aug 2018, 7:57 pm

^^^^ :star: happy bday :star:



kokopelli
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15 Aug 2018, 9:01 pm

auntblabby wrote:
^^^^ :star: happy bday :star:


Thank you.

I'm now fixing my birthday feast:
1) Field peas with ham chunks
2) Mashed potatoes
3) Chicken strips breaded like I do for chicken fried steak
4) Cream gravy

And to top it off
5) Butter Pecan Ice Cream



auntblabby
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15 Aug 2018, 9:03 pm

kokopelli wrote:
auntblabby wrote:
^^^^ :star: happy bday :star:


Thank you.

I'm now fixing my birthday feast:
1) Field peas with ham chunks
2) Mashed potatoes
3) Chicken strips breaded like I do for chicken fried steak
4) Cream gravy

And to top it off
5) Butter Pecan Ice Cream

sounds yummy :chef:



kokopelli
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15 Aug 2018, 9:06 pm

auntblabby wrote:
kokopelli wrote:
auntblabby wrote:
^^^^ :star: happy bday :star:


Thank you.

I'm now fixing my birthday feast:
1) Field peas with ham chunks
2) Mashed potatoes
3) Chicken strips breaded like I do for chicken fried steak
4) Cream gravy

And to top it off
5) Butter Pecan Ice Cream

sounds yummy :chef:


It is. I can make an entire meal out of field peas with ham or sausage chunks and mashed potatoes. My breaded chicken strips are better than any chicken strips I've ever eaten anywhere else.

I may not have enough room for it all.



auntblabby
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15 Aug 2018, 9:13 pm

kokopelli wrote:
auntblabby wrote:
kokopelli wrote:
auntblabby wrote:
^^^^ :star: happy bday :star:


Thank you.

I'm now fixing my birthday feast:
1) Field peas with ham chunks
2) Mashed potatoes
3) Chicken strips breaded like I do for chicken fried steak
4) Cream gravy

And to top it off
5) Butter Pecan Ice Cream

sounds yummy :chef:


It is. I can make an entire meal out of field peas with ham or sausage chunks and mashed potatoes. My breaded chicken strips are better than any chicken strips I've ever eaten anywhere else. I may not have enough room for it all.


dumb question but I gotta ask it, are "field" peas ones you go out into the field to pick?