Was Your Conduct Justified or Excusable Under One of Florida's Affirmative Defenses?

Tampa Criminal Defense Lawyer

If you stand accused of a crime and you have done everything the police have accused you of doing, is there anything left but to plead guilty? Yes. The police may be right in that they are able to prove you committed certain acts that are against the written law, but, with proper legal representation, you may be entitled to an acquittal, or even a dismissal. Our criminal justice system provides numerous justifications and/or excusals for conduct, thus, it is wrong to simply plead guilty.

When using an affirmative defense the accused concedes that he committed the elements of the offense, that is he admits they are true, but raises additional facts, which establish a valid excuse, justification, or right to engage in the conduct at question. There are many compelling reasons why one may be forced to break the law including necessity, duress and involuntary intoxication.

At The Law Office of Timothy Hessinger we have a knowledgeable, determined attorney with more than twenty years of experience navigating the Circuit and County criminal court systems. Our team can investigate not only the facts documented by the police, but all of the facts, known and unknown to law enforcement, which may establish a bona fide affirmative defense to the crime. Proper reliance upon an affirmative defense may result in an acquittal, or even dismissal of all charges.

Understanding Necessity

Sometimes, an individual breaks the law because he feels it is his only choice. Known as a "necessity defense", if established, it serves to excuse criminal conduct. When a defendant finds himself in a situation that he has not created, the situation presents an imminent threat of serious bodily injury and criminal action is the only escape from the injury, a necessity defense will be investigated by Attorney Tim Hessinger. He is thoroughly familiar with the legal precedent in the State of Florida and will capitalize on this legal precedent to your advantage. Here are a few instances in which the criminal laws of Florida have yielded to a properly investigated and presented affirmative defense:

  • In Bozeman V State, 714 So. 2d 570 (Fla. 1st DCA 1998) the First District Court of Appeal ruled the defendant was entitled to rely upon the necessity defense in his trial for driving on a license suspended, revoked or cancelled. In Bozeman, the defendant was a passenger in a car driven by his ex-wife as they searched for their missing daughter. At the time they began the search he did not believe his ex-wife was drunk, and so did not intentionally or recklessly place himself in the position of having to later choose to drive. The defendant testified that once he realized his ex-wife was too drunk to drive, he believed he had no viable alternative to driving, as he had no money for a taxi.
  • In McCoy v State, 928 So. 2d. 503 (Fla. 4th DCA 2006), the Defendant was pepper sprayed, arrested, and placed in a squad car with the windows up and air conditioning off. The defendant broke the window of the squad car and was charged with criminal mischief. The defendant testified that he was short of breath and believed he was suffocating when he broke out the window of the car. The Fourth District Court of Appeal held it was reversible error to fail to give a jury instruction on the necessity defense.

Presenting this defense is complicated requiring proof of five elements:

  1. The Defendant must have reasonably believed that his action was necessary to avoid an imminent threat of death or serious bodily injury to himself or others;
  2. The Defendant must not have intentionally or recklessly placed himself in a situation in which it was probable that he would be forced to choose the criminal conduct;
  3. There must have existed no other adequate means to avoid the threatened harm except the criminal conduct;
  4. The harm sought to be avoided must be more egregious than the criminal conduct perpetrated to avoid it, and
  5. The Defendant ceased the criminal conduct as soon as the necessity or apparent necessity for it ended.

Generally, a quick scan of a police report will not yield evidence of a necessity defense. The accused must be thoroughly interviewed on all facts existing at the time of his conduct. Health history, past relationships, present emotional state all this and more, may be relevant in determining whether the defendant felt it was critically necessary to perform the criminal action to avoid a greater harm to him, or to another. Tim has handled complex prosecutions for more than fifteen years. He knows how to develop the evidence and the law necessary to sustain a successful necessity defense.


Sometimes an individual violates the law to avoid a greater evil. Generally, the defense of duress applies when a person has threatened to inflict bodily harm on the Defendant if the Defendant will not commit a certain crime. There are criminal gangs which require the performance of criminal conduct for initiation. One who chooses to join the gang cannot rely upon a duress defense, but what if the gang has targeted an individual for membership? In Koontz v State, 204 So. 2d 224 (Fla. 2d DCA 1967), the Defendant admitted his attempt to rob a service station. He claimed that he was terrorized by members of a gang by repeated physical abuse and dire threats made toward him and members of his family. It was this duress that caused him to join in their criminal act. The Appellate Court found the Defendant had the right to rely upon the affirmative defense of duress.

Involuntary Intoxication

When a person becomes involuntarily intoxicated subsequent criminal actions perpetrated while under the influence are defensible. In Boswell v State, 610 – 670, 672 (Fla. 4th DCA 1992), the Fourth District Court of Appeal acknowledged the admissibility of an involuntary intoxication defense for a Defendant who was under the influence of prescription Prozac and Xanax for depression at the time of his crime. The court found the defendant was entitled to pursue a defense of involuntary intoxication.

Independent Act

Sometimes criminal charges may not be avoided entirely with proper reliance on an affirmative defense, but charges can be whittled down to what is appropriate. When a Defendant has agreed to commit one criminal act, but his co-Defendant's conduct a crime spree beyond this agreement, Tim can aggressively challenge the additional charges. Florida law provides a complex affirmative defense known as the Independent Act, which, when properly presented will release a co-defendant from culpability for crimes committed outside of the original agreement. "Under the Independent Act doctrine, a defendant whose co-felon exceeds the scope, and acts independently of, the original common plan is exonerated from any punishment imposed as a result of the co-felon's independent act." Beachy v State, 837 So. 2d 1152 (Fla. 1st DCA 2003).


An entrapment defense provides the grounds for an acquittal when the government implants in the mind of an innocent person the disposition to commit a criminal act. Law enforcement officers often utilize confidential informants to infiltrate gang activity, drug trafficking circles, organized crime and hand to hand drug transactions. Usually, the confidential informant is cooperating for his own personal gain. That is, he is either actually being paid for the information, or, more commonly, he is seeking a reduction in a pending sentencing. If a confidential informant is to be useful at all, he must have a presence in the criminal world. Consequently, the confidential informant is often a criminal. When this informant goes after an innocent person and brings them into the criminal world, that innocent person has been entrapped.

There are two levels of entrapment; objective and subjective. Objective entrapment, if established, precludes prosecution; charges must be dismissed as a matter of law. Subjective entrapment is a defense that a jury may consider, and lawfully rely upon, to return a verdict of not guilty. Objective entrapment is deplorable conduct on behalf of the government, generally undertaken by a confidential informant. All actions of a confidential informant are imputed to the government, and they should be. Once the government undertakes to bring in an informant the government is responsible for instructing, training, monitoring and supervising that informant. When the government fails to do this it will nevertheless be responsible for all actions of the informant. When the informant selects a target, and that target has no criminal history and no previous desire to engage in criminal conduct, entrapment is likely to occur. Law books are filled with examples of entrapment abuse; government agents going after innocent individuals and creating criminals of them. From threats of violence, to impoverishing, to relentless exposure, citizens have been wrongfully targeted in the name of justice. The objective entrapment analysis focuses on the conduct of the government and occurs when government conduct is so egregious that it violates due process and cannot be tolerated. Absent this high level of shocking conduct, the facts must be scrutinized for a subjective entrapment defense. The focus of the subjective entrapment inquiry is on the predisposition of the defendant. The Defendant must move forward with evidence of subjective entrapment, showing that a government agent was involved, and that the defendant was not predisposed to commit this crime. If this is established the defendant has a right to a jury instruction on entrapment. If the jury believes that a government agent, be it a sworn officer or an informant, induced the crime, and further believes the defendant was not predisposed to commit the crime, absent the suggestion by the government, the jury should acquit the defendant of the charges.

Courts have found objective entrapment as a matter of law, where physical violence was threatened, ( Robichaud v State, 658 So. 2d 166 (Fla. 2d DCA 1995)) and when a consignment arrangement for the sale of drugs was offered, ( Soohoo v State, 737 So. 2d 1108 (Fla. 4th DCA 1999)). In State v Anders, 596 So.2d 463 (Fla. 4th DCA 1992) the court condemned an arrangement in which law enforcement failed to monitor the informant, failed to instruct him on entrapment avoidance, failed to investigate whether the target had a criminal past, and allowed the informant to set up a reverse-sting operation. "Due process of law will not tolerate the law enforcement techniques employed in this case. Sending an untrained informant out into the community, with no control, no supervision and not one word of guidance or limitation about whom he may approach or what he should do was an invitation to trouble. … Livermore was allowed to create a trafficking offense and offender where none previously existed, to engage in negotiations the contents of which no independent witness can verify, and finally, to determine the potential mandatory prison term and fine by selecting the amount of drugs to be sold. Due process is offended on these facts." Id.

In reviewing any case that involves a government informant, Tim Hessinger will be asking questions; who made contact? Did the government agent initiated contact with the defendant this will raise a red flag. Does the defendant have a criminal history? If the answer is no, another red flag is raised. Even if the defendant does have a criminal history, further inquiry must occur. Is that criminal history of the same, or a different type, of violation? One who has previously been arrested for DUI may certainly be entrapped in a drug transaction. At The Law Office of Timothy Hessinger we look at each defendant as an individual; and his life will be examined for evidence that he lacked the predisposition to commit the crime charged. If an individual, who has never before purchased drugs, stolen goods, counterfeit money, obscene materials, etc., is suddenly charged with that crime, and the purchase was instigated by the government, an entrapment defense will be aggressively pursued.

Oftentimes, things are not as they seem. It is a mistake to judge a book by its cover. Law enforcement officers are just as susceptible to this as others. It is the job, and the passion of Attorney Timothy Hessinger to go beyond the facts initially developed to determine if there is a basis for acquittal or dismissal. Intensive investigation, comprehensive client interview and pervasive knowledge of the criminal code can yield results in cases where the established facts are not in dispute.

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