FL vs. Villaverde Order Granting Motion To Dismiss
FL vs. Villaverde Order Granting Motion To Dismiss
FL vs. Villaverde Order Granting Motion To Dismiss
STATE OF FLORIDA
PLAINTIFF,
vs.
DEFENDANT,
/
THIS CAUSE comes before the Court upon the Defendant’s Motion to Dismiss,
filed August 18, 2023 (“the Motion”). The Court held an evidentiary hearing on the
Motion on December 1, 2023, at which the Court took the matter under advisement.
After review of the Motion, the evidence presented at trial, and the arguments of the
parties, the Court now GRANTS the Motion for the reasons set forth below.
FACTS
1. On the morning of August 6, 2022, the Defendant Rafael Villaverde was in front
of his residence located 7900 S. Orange Blossom Trail, Room #1097, Orlando,
multi-unit building with a shared parking lot and a breezeway behind the
parking lot in front of the Defendant’s complex and walked toward the Defendant.
Mr. Jimenez had his right hand conspicuously concealed in the pocket of his
3. As Mr. Jimenez entered the parking lot, the Defendant removed his handgun
from his pocket, loaded a round into the chamber, and held the handgun at his
4. As Mr. Jimenez walked past the Defendant, the Defendant and Mr. Jimenez had
a very brief and apparently unfriendly verbal exchange. Mr. Jimenez then
proceeded past the Defendant and turned down the breezeway. The Defendant’s
5. The Defendant then spoke with the individual who arrived with Mr. Jimenez as
they both walked to follow Mr. Jimenez into the breezeway. The Defendant’s
pulled a firearm from his sweatshirt pocket, and pointed the firearm in ambush at
7. As the Defendant turned the corner into the breezeway, Mr. Jimenez opened fire
upon the Defendant, striking the Defendant in the torso or leg. After being shot,
the Defendant raised his firearm and returned fire, striking Mr. Jimenez. Mr.
Jimenez appeared to fire two shots before the Defendant returned fire. Both
individuals then exchanged multiple gunshots and fell to the ground. Mr. Jimenez
got up and fled through the breezeway, but later died of his injuries.
APPLICABLE LAW
The Defendant brings the instant motion pursuant to Florida Statutes 776.012
person who uses force as permitted in § 776.012 is immune from criminal prosecution
immunity, the State bears the burden of proving by clear and convincing evidence at a
pretrial evidentiary hearing that the defendant is not entitled to immunity. § 776.032(4),
Fla. Stat.; Bouie v. State, 292 So.3d 471, 474 (Fla. 2d DCA 2018). The Bouie Court
Id. at 480-481.
ANALYSIS
articulates sufficient factual assertions to raise a prima facie case of self-defense. The
issue therefore turns to whether the State has presented clear and convincing evidence
that the Defendant was not justified in using deadly force pursuant to §§ 776.012 and
776.041.
In the instant case, it is undisputed that the Defendant did not shoot or raise his
gun at Mr. Jimenez until after Mr. Jimenez had already shot the Defendant at least
once. The State argues, however, that the Defendant cannot claim immunity because
he initially provoked the use of force against himself. The evidence before the Court
fails to support such a conclusion. Although a brief verbal exchange occurred between
Mr. Jimenez and the Defendant immediately before the shooting began, there is
insufficient evidence in the record to show by clear and convincing evidence that this
exchange somehow provoked the use of force by Mr. Jimenez against the Defendant.
The record is devoid of the content of the verbal exchange between the Defendant and
Mr. Jimenez, and the Mr. Jimenez disengaged with the Defendant and did not reengage
with the Defendant until shooting him. The State points to footage in the video which
shows the Defendant repeatedly touching the firearm in his pocket before Mr. Jimenez
arrived at the scene. These relatively innocuous actions, even if somehow provocative,
occurred prior to the arrival of Mr. Jimenez, and therefore could not have provoked Mr.
existence of clear and convincing evidence showing the Defendant somehow provoked
Mr. Jimenez’s attack, the video evidence clearly establishes that upon Mr. Jimenez’s
escalation of the conflict by use of deadly force, the Defendant had no other reasonable
The Motion is GRANTED. Count One (Second Degree Murder with a Firearm) of
DONE AND ORDERED in Orlando, Orange County, Florida this December 7th,
2023.
12/7/2023
____________________________________
VINCENT S. CHIU
12/7/2023
Circuit Judge
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the foregoing was filed with the Clerk of the Court this
December 5, 2023, by using the Florida Courts E-Filing Portal System. Accordingly, a
copy of the foregoing is being served on this day to all attorney(s)/interested parties
identified on the ePortal Electronic Service List, via transmission of Notices of Electronic
Patricia Nielsen
__________________________________________
Patty Nielsen, Judicial Assistant to Judge Vincent S. Chiu