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Michael Dunn retrial set for May 5, sentencing delayed

Michael Dunn retrial set for May 5, sentencing delayed

Dunn receives delayed sentencing, a new murder trial, and new legal counsel

At Michael Dunn’s recent “loud music” murder trial the jury found him guilty of three counts of attempted murder and one count of hurling missiles at an occupied vehicle–convictions sufficient for up to 75 years in prison. (Hat-tip to ‏@TCinOP for pointing out the News4Jax piece on this story.)

The jury hung, however, on the charge of first degree murder (or any of its lesser included offenses, such as second degree murder and manslaughter) in the shooting death of Jordan Davis, apparently because at least three jurors they felt that the State prosecutors had failed to disprove self-defense beyond a reasonable doubt (the legal standard for a legal defense of self-defense in all American states except for Ohio).

Florida State Prosecutor Angela Corey, who led the first Dunn prosecution, had consistently stated that she intends to re-try Dunn on the hung murder charge–and now a date for that re-trial has been set.  And it’s not far off:  May 5.

Simultaneously with setting the re-trial date, the judge also ruled that Dunn’s sentencing his existing convictions will be deferred until after a verdict has been reached on the murder charge.  Given the complexity of sentencing generally–typically a pre-sentencing report taking several weeks to prepare is required–and the probable likelihood that a verdict on the murder charges will be in hand in less than 8 weeks, it makes sense to simply have one sentencing process after the second trial.

In addition, there is some uncertainty under Florida law whether convictions involving the state’s “10-20-Life” statute must be run consecutively or whether they may be run concurrently.  The difference for Dunn on even just his existing convictions would be between a sentence of as long as 75 years if run consecutively (effectively a life sentence) and as “few” as 20 years if run concurrently.  

A delay in sentencing allows for the possibility that the Florida state Supreme Court may address the issue by the time Dunn is sentenced.

Alternatively, if on re-trial Dunn is found guilty of first degree murder that conviction alone would be sufficient to sentence him to life in prison, and the current “10-20-Life” confusion would not be immediately relevant for purposes of his sentencing.

Separately, Dunn’s legal counsel for the first trial, Corey Strolla, is no longer representing him.  Instead, a public defender by the name of Waffa Jamal Hanania has been appointed by the court to handle Dunn’s murder re-trial.

–-Andrew, @LawSelfDefense


Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.

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Comments

Question: We’re all familiar with Double Jeopardy, but how many times can the State put a defendent on trial for murder provided they get a hung jury each time? Five? Fifty?

    Ragspierre in reply to georgfelis. | March 14, 2014 at 1:01 pm

    The limit would be practical, not legal.

    IMNHO.

    Olinser in reply to georgfelis. | March 14, 2014 at 3:46 pm

    I don’t believe there is a law regarding a maximum number of mistrials, unless a mistrial was due to prosecutor or judicial misconduct.

    I seem to recall a couple cases where initially juries failed to reach a verdict twice, but a defendent was retried a third time after new evidence was found, and was found guilty.

    Most of the time prosecutors simply decline to refile charges because it costs a huge amount of time and money, and after two costly trials with no result, they just want it to disappear.

Let’s see of IR-rational shows up to troll this thread.

MouseTheLuckyDog | March 14, 2014 at 1:49 pm

Isn’t May 5 a bit early? Considering he’s getting a new lawyer who will start from scratch?

The text of FL 776.032 raises some fascinating appellate issues of Dunn is acquitted of murder. It reads:

A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force …

If a second jury determines that Dunn’s firing of multiple shots constituted lawful self-defense, Dunn can raise the immunity statute to overturn the first conviction on appeal. It will likely be a case of first impression.

    Semper Why in reply to sequester. | March 14, 2014 at 3:26 pm

    I don’t think so. Dunn might be able to skate shooting Davis in self defense. But the extra shots at the retreating SUV were determined to be in violation of the law.

    To simplify it greatly: Dunn may have been acting in self-defense when he shot Davis, but he was not acting in self defense when he shot into a fleeing vehicle, seconds later.

    Olinser in reply to sequester. | March 14, 2014 at 3:27 pm

    No, it doesn’t, and no, he can’t.

    Self-defense isn’t applied in some massive blanket that makes you immune to anything you did in that period. Each charge is separate, and self-defense applies individually to each charge.

    Which is exactly what happened.

    Dunn was convicted of attempted murder – because the jury decided that self-defense had been disproven beyond a reasonable doubt when he continued to fire at the vehicle.

    The jury hung on whether his initial 3 shots (responsible for killing Davis) were self-defense.

    There may be a few things in his trial to appeal, but his conviction or acquittal on the murder charge has absolutely no bearing on his conviction on the attempted murder charges.

    sequester in reply to sequester. | March 14, 2014 at 3:54 pm

    Sorry guys. It is a potential argument. A defense attorney who failed to raise it in the case of an acquittal would be utterly negligent. That doesn’t mean it is a winning argument or that you have to like the argument or agree with it.

    Your replies merely scope out a reply brief. (And we can go on and on with argument and law). Appellate judges determine the result of these arguments, not you or me.

      Semper Why in reply to sequester. | March 15, 2014 at 11:58 am

      I suppose as potential arguments go, it’s a slightly better straw to grasp than others I’ve seen.

      I do not think he will succeed if he tries that route.

buckeyeminuteman | March 14, 2014 at 2:17 pm

I don’t understand. If you’re found not-guilty, how can there be a re-trial? Is this a case of some state technicality, or is this a blatant disregard for the American judicial process? I must have missed something.

    Ragspierre in reply to buckeyeminuteman. | March 14, 2014 at 2:53 pm

    A hung jury does not make a “finding” one way or the other.

    Dunn was not found “not guilty”. Hence, no double jeopardy.

    The jury hung – meaning they could not reach a verdict.

    States and crimes may vary the number, but all of them have a set number of jurors that must agree on a verdict – guilty or not guilty.

    If a conviction or acquittal requires a unanimous vote, and 3 jurors do not believe he is guilty while the rest think he’s guilty (as happened in this case), then after a reasonable amount of time has passed – usually several days – the judge must declare a mistrial.

    If a mistrial is declared, the prosecution can refile charges on any charges without a verdict, at any time.

    Charges that resulted in guilty or not guilty verdicts cannot be refiled.

      MouseTheLuckyDog in reply to Olinser. | March 14, 2014 at 5:04 pm

      If a mistrial is declared, the prosecution can refile charges on any charges without a verdict, at any time.
      Just to be pedantic, not at any time. Statute of limitations still applies, though generally there is no SoL for murder charges, though there might be for manslaughter.

Mr Branca,

Question for you. In this state, do they have to refile the exact same charges (Murder 1 in this case), or can they downgrade it and file for a lesser charge (Murder 2 or Manslaughter).

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