Florida Stand Your Ground Hearings: Can Staying Silent Defeat A Motion to Dismiss?

August 28, 2025 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

Florida’s Stand Your Ground law (Fla. Stat. 776.012 and 776.013) is one of the state’s most widely recognized pieces of legislation, but is often misunderstood.

Under law, someone is justified in using or threatening to use deadly force if it is:

• Reasonably believed to be necessary to prevent death or great bodily harm to yourself or another
• Reasonably believed to be necessary to prevent the commission of a forcible felony (e.g. armed robbery, aggravated battery, etc.)

If someone files a motion to dismiss based on Stand Your Ground immunity, the first step is a pretrial immunity hearing. At this immunity hearing, the judge may dismiss the charges if the defendant makes a prima facie showing of lawful use of force, and the State is unable to rebut this by clear and convincing evidence.

At a pretrial immunity hearing, a defendant may choose to remain silent, as this is an exercise of their Fifth Amendment right. It is well-established that at trial, a defendant’s silence cannot be used by the finder of fact (e.g. the jury) to infer their guilt. State v. Horwitz, 191 So. 3d 429, 441 (Fla. 2016). 

But does this principle still apply when the proceeding is a Stand Your Ground immunity hearing and not a trial? A new, major Florida court decision says yes. This means a defendant’s decision not to testify cannot be used against them to deny their request for immunity from prosecution under Stand Your Ground.

This blog will discuss the basics of Florida’s Stand Your Ground law, as well as a new Florida court ruling holding that a defendant’s silence during a Stand Your Ground immunity hearing cannot be cited by a judge to deny a claim of immunity from prosecution.

Stand Your Ground applies in any place where someone is lawfully present. Some key aspects of Florida’s Stand Your Ground law include:

• No duty to retreat: The law eliminates the duty of someone to retreat before using or threatening to use deadly force, if they are in a place they have a lawful right to be and are not engaged in criminal activity.
• Reasonable belief: Someone must develop a reasonable belief based on the circumstances and facts available to them that the use or threatened use of deadly force is lawful. In determining the validity of a Stand Your Ground claim, courts assess whether a prudent and reasonable person would have developed such a fear if in the defendant’s shoes. Mobley v. State, 132 So. 3d 1160 (Fla. 3d DCA 2014)
• Immunity from prosecution: Before trial, a motion to dismiss may be filed by the defendant pursuant to Fla. Stat. 776.032. For immunity to be granted, the defendant must first make a prima facie (on its face) showing that the force used was legally permissible (e.g. self-defense/defense of others). If they succeed, the State must prove by clear and convincing evidence the force was not legally justified. If the State fails, the charges are to be dismissed before trial. Chaffin v. State, 121 So. 3d 608 (Fla. 4th DCA 2013)
• Presumption of fear: If someone unlawfully enters or attempts to enter a home, vehicle, or dwelling, the law presumes the defendant had a reasonable fear of imminent harm, making it even harder for charges to stick (Fla. Stat. 776.013(4)). The law also presumes the person who did the illegal entering did so with the intent to commit unlawful violence or use unlawful force.
• Levels of force: Under Stand Your Ground, non-deadly force can be used or threatened to counter unlawful force (e.g. not intended or likely to cause death or great bodily injury). Deadly force can be used (or threatened) to prevent death or serious bodily harm to yourself, others, or to prevent a forcible felony.

It is important to note that Stand Your Ground cannot be successfully invoked if any of the following are true:

• The defendant is engaged in unlawful activity (with the possible exception of illegal possession of a firearm, per Little v. State, 111 So.3d 214 (Fla. 2d. DCA 2013)) at the time or is the initial aggressor
• The force was used against a law enforcement officer engaged in the performance of their initial duties
• The person is trespassing or in a place they have no legal right to be

In cases involving an argument of self-defense – as in all criminal cases – a verdict against a defendant cannot be based (entirely or even partially) on their decision to remain silent. This is because doing so would effectively defeat the purpose of the Fifth Amendment. The Founding Fathers were extremely skeptical of presuming someone’s guilt simply because they chose not to testify at trial.

However, in a recent case, a Florida judge cited a defendant’s lack of testimony that he was defending himself at a Stand Your Ground immunity hearing. Moore v. State, 2025 WL 1275891 (Fla. 6th DCA 2025). Moore was accused of second-degree murder, and the trial judge denied his motion to dismiss based on Stand Your Ground immunity.

In denying Moore’s motion to dismiss after the pretrial immunity hearing, the judge cited the following facts:

• Moore had told at least one person he and the alleged victim fought, but no injuries or blood were observed on Moore.
• A firearm was also not located at the scene, but on video, Moore was captured with a gun on his person.
• Moore did not testify at the hearing and presented no evidence in his defense.
• There was no testimony presented that the victim had a gun and Moore shot her in self-defense. According to the trial judge, Moore failed to present any evidence to establish that he reasonably believed that his use of force was necessary to prevent imminent death or great bodily harm to himself.

Florida’s 6th District Court of Appeal reversed the trial judge’s findings and granted Moore pretrial immunity. The 6th DCA noted that Moore never claimed he was injured while fighting the alleged victim, so the trial court erred in citing his lack of injury as evidence that his claim of self-defense was invalid.

The 6th DCA then discussed how the trial judge incorrectly cited Moore’s decision not to testify at the pretrial immunity hearing. The court held:

“[W]e hold that the trial court improperly relied on Moore’s silence in determining he was not entitled to immunity. This it could not do. … Accordingly, we hold that Moore’s ‘failure to testify’ is not competent, substantial evidence tending to disprove his claim of self-defense.”

“Moore was not required to submit any evidence, and the trial court erred in considering the lack of evidence presented by Moore and then using that lack of evidence to fill in the gaps in the State’s evidence where the State bore the burden to prove by clear and convincing evidence that Moore did not act in self-defense.”

Given the breadth of the 6th DCA’s reasoning, the Moore decision is likely to be a key one in many Stand Your Ground cases going forward. The ruling is clear: it is the State’s burden to prove unlawful use of force, and a defendant’s lack of presentation of evidence (including testimony) cannot be used against him in a Stand Your Ground immunity hearing.

As previously noted, however, a defendant must still make a prima facie (on its face) showing of self-defense before the burden shifts to the State. This means a defendant must allege specific facts that show or tend to show the defendant had a reasonable belief that their show of force was necessary and legally justified. Maslo v. State, 390 So.3d 720  (Fla. 3d. DCA 2024)

Note: Florida’s Pardo rule applies here. The Pardo rule recognizes that any decision from a Florida District Court of Appeal binds all courts in Florida (just like a U.S. Supreme Court or Florida Supreme Court decision), unless and until it is conflicted with by another DCA, or overruled by the Florida or U.S. Supreme Courts. Pardo v. State, 596 So. 2d 665 (Fla. 1992)

If someone’s decision not to testify at a Stand Your Ground immunity hearing is used against him by a judge in denying an immunity claim, this denial may be reversed by an appeals court. 

If someone is concerned about a case involving a Stand Your Ground defense or is seeking to argue Stand Your Ground, it is crucial to find experienced and aggressive legal representation as soon as possible. This vital decision could make the difference in whether or not a person is subject to a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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