Justified or Excused? The Basics of “Affirmative Defenses” in Criminal Cases in Florida

“I did it… but I was justified.” “I did it… but I was excused.”

There are more than a few affirmative defenses in Florida. An “affirmative defense” is a defense which admits the cause of action, but avoids liability, in whole or in part, by alleging an excuse, justification, or other matter negating or limiting liability.[i] In layman’s terms, “I did it, but my act is justified or excused.” If the defense is accepted by the jury, then the verdict must be “not guilty” because the entire criminal act is excused or justified (and, therefore, legally negated). If the defense is not accepted, the accused has admitted to all the elements of the offense (and usually convicted him or herself).

An “affirmative defense” in a criminal case with limited exceptions requires a defense case-in-chief and the accused to testify as a witness in his or her own defense. Almost all “affirmative defenses” in the criminal sense require some evidence to present the defense.

Typically, the prosecution has the burden to proving the defendant’s “guilt beyond a reasonable doubt.” When an “affirmative defense” is presented, the defendant has the burden of proving the elements of the “affirmative defense” by a mere preponderance[ii] of the evidence (with a few notable exceptions).[iii] The exceptions are insanity (which requires “clear and convincing evidence”)[iv] and self-defense or justifiable use of force (which requires a mere showing which then shifts the burden back to the prosecution to disprove self-defense). “And when the facts are disputed on an affirmative defense raised by the defendant, the case should be submitted to the jury. (Citation omitted)”[v]

Most “affirmative defenses” to criminal cases in Florida do not require notice to be provided to the State except alibi (e.g., “I was not there.”)[vi] or insanity (e.g., “I did not know what I was doing was a crime because I am really mentally ill and do not understand right from wrong”).[vii] Apparently, the rule makers believe that an alibi defense presented to the prosecutor with time to investigate the matter might cause the case to be dismissed (if in fact the perpetrator can prove that his or her whereabouts was completely elsewhere from the location of the crime). As for insanity, the rules allow for the prosecutors to obtain a psychological evaluation of the accused for trial to counter the “affirmative defense.”[viii] In the light most favorable to the prosecution, these reasons for these rules seems fair.

The basic “affirmative defenses” in criminal cases in Florida are:

  • Consent;[ix]
  • Necessity;[x]
  • Advice/mis-advice of counsel;[xi]
  • Entrapment;[xii]
  • Duress;[xiii]
  • Renunciation (abandonment/withdrawal);[xiv]
  • Self-defense (justifiable use of force (deadly or non-deadly) which also includes defense of others or defense of property);[xv] and
  • Insanity.[xvi]

Alibi is an affirmative defense, but it is different from the above defenses because alibi does not require the defendant to admit the elements of the offense as proven to assert the defense. Alibi simply means that the defendant was elsewhere when the crime occurred and, therefore, could not be the perpetrator.

On the other hand, there is an inherent danger is proceeding with an affirmative defense if the defense is not fully supported by the facts or the defense is simply cockamamie under the circumstances. For instance, the defendant is charged with aggravated battery with a deadly weapon. At trial, the witnesses testify that the defendant walked over to the victim and struck him with a baseball bat for no reason because the victim was minding his own business. The prosecution also plays for the jury a recording from a security camera that captures the crime and completely corroborates the witnesses and victim’s testimony. Under these circumstances, it might be completely silly to attempt a self-defense defense at trial. If the “affirmative defense” is not fully supported by the evidence at trial, then the defendant is flat admitting to the jury “I committed the crime.”

Affirmative defenses require preparation and more preparation to be effectively used at trial and should not be undertaken lightly. An ill-conceived “affirmative defense” will get the accused nearly automatically convicted. These dangers must be discussed with the defendant prior to trial or filing the specific notices. “Affirmative defenses,” because the defendant is admitting to the crime, must be agreed upon and to by the defendant.[xvii] The best practice is to discuss the dangers and benefits of the specific “affirmative defense” and get written consent that (a) the matter was discussed and (b) the defendant is or is not in agreement with presenting the specific “affirmative defense.”

Anthony Candela is the Trial Dog and a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog


Please do not hesitate to contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss your trial or appeal. As a three-time, board-certified criminal trial defense attorney, I have the experience to represent you accurately and effectively. Over my 20-years, I have handled countless criminal trials and appeals so that I thoroughly understand the issues involved. I have successfully presented many of these “affirmative defenses” to a jury with more than satisfactory results and am absolutely familiar with how they work and when to use them.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article. You can also check out the author at his profile at AVVO.com click 


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No. 20-008

[i] St. Paul Mercury Ins. Co. v. Coucher, 837 So.2d 483 (Fla. 5th DCA 2002).

[ii]  Also referred to as the “greater weight of the evidence.” If this were a scale, the proponent presenting the evidence must merely tip the scale ever so slightly in their direction 51% to 49%.

[iii] Harriman v. State, 174 So.3d 1044 (Fla. 1st DCA 2015) (The defense has to prove an affirmative defense by a preponderance of the evidence).

[iv]  Rodriguez v. State, 172 So.3d 540 (Fla. 5th DCA 2015)

[v] Oliver v. State, 293 So.3d 1102 (Fla. App. 2020) (citing Krupkin v. State, 119 So.3d 1267, 1270 (Fla. 1st DCA 2013).)

[vi] See Fla. R. Crim. P. 3.200.

[vii] See Fla. R. Crim. P. 3.216; and §775.027, Fla. Stat. (S. 1, Ch. 2000-315)

[viii]  Obviously, if the State’s doctors and professionals concur with the defense experts the defendant might be found “not guilty by reason of insanity” (“NGRI”)  (which is not the same as simply “not guilty.”) If a defendant is found and adjudicated NGRI, the defendant will be sent to a hospital for a period depending on the severity of the offense. NGRI does not automatically convey a person’s freedom and liberty to them because of the adjudication.

[ix] Hicks v. State, 407 So.2d 252 (Fla. 5th DCA 1981); Bolden v. State, 637 So.2d 337 (Fla. 2d DCA 1994) (consent is an affirmative defense to burglary).

[x]  Oliver, supra.; Knight v. State, 187 So.3d 307 (Fla. 5th DCA 2016) (necessity is an affirmative defense to felon in possession of a firearm).

[xi] Gause v. First Bank of Marianna, 457 So.2d 582 (Fla. 1st DCA 1984).

[xii] State v. Munro, 463 So.2d 484 (Fla. 5th DCA 1984).

[xiii] Franklin v. State, 275 So.3d 192 (Fla. 4th DCA 2019).

[xiv] Harriman, supra.

[xv] “Self-defense is an affirmative defense that must be disproven by the state. See Mosansky v. State, 33 So.3d 756, 758 (Fla. 1st DCA 2010) (“The defendant has the burden of presenting sufficient evidence that he acted in self-defense in order to be entitled to a jury instruction on the issue. But the presentation of such evidence … merely requires the state to present evidence that establishes beyond a reasonable doubt that the defendant did not act in self-defense.”).” Harriman, 174 at 1050 Fn. 2.

[xvi] Rodriguez, supra.

[xvii]  In 2018, the United States Supreme Court decided McCoy v. Louisiana, 584 U.S. —, 138 S.Ct 1500, 200 L.Ed.2d 821 (2018). The facts of McCoy are not necessary to this discussion, but the holding is- – a criminal defense attorney (even with the best intentions for the accused) may not admit a defendant’s guilt without his/her consent and, thus, deprive the defendant of his/her right to trial (and force the government to prove the case against him/her beyond a reasonable doubt). The constitution forbids it. There are types of cases (like death penalty cases) where the best strategy is to admit to the homicide (to win some credibility with the jury) and the focus all the attention on mitigation to influence a life versus a death recommendation. Logically, if the defense attorney cannot admit guilt without the defendant’s consent based upon McCoy, supra, then the defense attorney cannot present an “affirmative defense” (which admits guilt if the “affirmative defense”) without the defendant’s consent.

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