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IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT, IN AND FOR MARION COUNTY, FLORIDA STATE OF FLORIDA, NO. 298-04-076 Plaintiff, v. GREGORY ZILCH, Defendant.
IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT, IN AND FOR MARION COUNTY, FLORIDA STATE OF FLORIDA, NO. 298-04-076 Plaintiff, v. GREGORY ZILCH, Defendant. ________________________________/ NOTICE OF FILING DEFENDANT'S MOTION TO DISMISS, DEFENDANT'S MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS, AND DEFENSE COUNSEL'S AFFIDAVIT IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS COMES NOW, the Defendant, GREGORY ZILCH (\"Defendant\"), by and through his attorney, and hereby files this Notice of Filing Defendant's Motion to Dismiss, Defense Counsel's Affidavit in Support of Defendant's Motion to Dismiss, and the Defendant's Memorandum of Law in Support of Defendant's Motion to Dismiss. Respectfully Submitted, X Harry Reign attorney of record Harry Reign, Esq. FBN: 123456 Cohen & Reign, P.C. Counsel for the Defendant 1234 Address Way Road Penthouse Miami, FL 33131 1|Page (Certificate of Service on Next Page) CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the above and foregoing has been delivered to the District Attorney's Office on this the _____ day of _________________, 2017. X Harry Reign attorney of record 2|Page IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT, IN AND FOR MARION COUNTY, FLORIDA STATE OF FLORIDA, NO. 298-04-076 Plaintiff, v. GREGORY ZILCH, Defendant. ________________________________/ DEFENDANT'S MOTION TO DISMISS COMES NOW, the Defendant, GREGORY ZILCH (\"Defendant\"), by and through his attorney, hereby files this Motion to Dismiss in accordance to 776.032, Florida Statutes (2011), and Rule 3.190(c)(4), Florida Rules of Criminal Procedure, moves this Honorable Court to dismiss the criminal charges against the Defendant, and state that the Defendant is immune from further prosecution. In support of the Defendant's Motion to Dismiss, the Defendant states the following: 1. On the night of July 3rd, 2017, the Defendant was arrested, and charged with Second Degree Murder in violation of Fla. Stat. 782.04, which is a first-degree felony that is punishable up to a maximum punishment of life in prison as well as a fine of $10,000.00. 2. The Defendant's position is that he used self-defense to protect himself and his neighborhood against Travis Mercer, which lead to the Defendant drawing his fire arm and firing several rounds at Mr. Mercer. The Defendant also had a permit to carry. 3. Rule 776.032, Fla. Stat. gives protection from criminal prosecution and civil action for justifiable use or threatened use of force, and explicitly states \"(1) A person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in such 3|Page conduct and is immune from criminal prosecution and civil action for the use or threatened use of such force by the person, personal representative, or heirs of the person against whom the force was used or threatened, unless the person against whom force was used or threatened is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using or threatening to use force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term \"criminal prosecution\" includes arresting, detaining in custody, and charging or prosecuting the defendant.\"[Fla17] 4. The night of the altercation, the defendant feared for his life. There is prof of his fear in the phone calls that were made to local police. In the calls the defendant asked local police to investigate the presence of Mr. Mercer. There had been recent break ins this also put our defendant on edge. In the end the defendant even had bruising on his face from the altercation between him and Mercer. 5. Under the Florida Statutes, 776.012, Florida Statutes,\" (1) A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.\" (Florida's \"Stand Your Ground\" Law) 6. Under Fla. Stat. 782.02 \"The use of deadly force is justifiable when a person is resisting any attempt to murder such person or to commit any felony upon him or her or upon or in any dwelling house in which such person shall be.\" 4|Page 7. Under the self-defense rule of stand your ground provides the Defendant a right to protect himself from harm under appropriate circumstances, even when that behavior would normally constitute a crime. 8. The Defendant felt that he was in imminent danger of unlawful bodily harm by Travis Mercer. The Defendant felt that this force was necessary in order to avoid a dangerous situation. 9. The Defendant was not the antagonist on the night of the confrontation and only acted in self-defense. 10. There is no proof that the defendant antagonized Mr. Mercer in any way on the night of question. The force used by the defendant was reasonable. 11. The evidence in this case is circumstantial it does not prove that the defendant was premeditated in his actions. 12. The evidence that the State of Florida is relying upon does only shows suspicion that the Defendant could have or might have provoked Travis Mercer on the night of the incident. WHEREFORE, the Defendant, GREGORY ZILCH respectfully requests this Honorable Court to enter an order to dismiss the charge of second-degree murder charge that has been filed against him by the State of Florida, and grant him immunity from further prosecution. Respectfully Submitted, X Harry Reign attorney of record Harry Reign, Esq. FBN: 123456 Cohen & Reign, P.C. Counsel for the Defendant 1234 Address Way Road 5|Page Penthouse Miami, FL 33131 CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the above and foregoing has been delivered to the District Attorney's Office on this the _____ day of _________________, 2017. X Harry Reign attorney of record IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT, IN AND FOR MARION COUNTY, FLORIDA STATE OF FLORIDA, Plaintiff, v. GREGORY ZILCH, 6|Page NO. 298-04-076 Defendant. ________________________________/ DEFENDANT'S MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS Defendant, GREGORY ZILCH, through the attorney of record, files this Memorandum of Law in Support of Defendant's Motion to Dismiss the Criminal Charges filed against him, and states the following: 1. The Defendant states that he used reasonable force in order to protect himself against Travis Mercer, which eventually ended in the Defendant drawing his fire arm and firing several rounds at Mr. Mercer in self-defense. 2. GREGORY ZILCH (\"Defendant\") has been accused of Second Degree Murder for a confrontation that occurred July 3rd, 2017. 3. According to the self-defense rule of stand your ground you have the right to protect yourself from harm under appropriate situations, even if the behavior would normally be defined as a crime. MEMORANDUM OF LAW The concern before this Court is if the Defendant used acceptable force that is allowed under Florida's Stand your Ground Law. Fla. Stat. 776.032 \"Immunity from criminal prosecution and civil action for justifiable use or threatened use of force.\" \" (1) A person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in such conduct and is immune from criminal prosecution and civil action for the use or threatened use of such force by the person, personal representative, or heirs of the person against whom the force was used or threatened, unless 7|Page the person against whom force was used or threatened is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using or threatening to use force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term \"criminal prosecution\" includes arresting, detaining in custody, and charging or prosecuting the defendant. (2) A law enforcement agency may use standard procedures for investigating the use or threatened use of force as described in subsection (1), but the agency may not arrest the person for using or threatening to use force unless it determines that there is probable cause that the force that was used or threatened was unlawful. (3) The court shall award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1). (4) In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1)\" WHEREFORE, the Defendant, GREGORY ZILCH respectfully requests this Honorable Court to dismiss the second-degree murder charge filed against him by the State of Florida, and grant him immunity from further prosecution. Respectfully Submitted, 8|Page X Harry Reign attorney of record Harry Reign, Esq. FBN: 123456 Cohen & Reign, P.C. Counsel for the Defendant 1234 Address Way Road Penthouse Miami, FL 33131 CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the above and foregoing has been delivered to the District Attorney's Office on this the _____ day of _________________, 2017. X Harry Reign attorney of record IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT, IN AND FOR MARION COUNTY, FLORIDA STATE OF FLORIDA, Plaintiff, v. GREGORY ZILCH, 9|Page NO. 298-04-076 Defendant. ________________________________/ AFFIDAVIT IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS STATE OF FLORIDA ) COUNTY OF MARION ) The undersigned attorney of record Harry Reign, being duly sworn, deposes and states as follows: 4. This case involves a Defendant, GREGORY ZILCH, who is accused of Second Degree Murder during an altercation that occurred on the night of July 3rd, 2017. 5. Defendant states that he has shown proof of a reasonable cause as to why his Motion for Dismissal should be granted. 6. The Defendant's Motion to Dismiss is made in good faith and not for purposes of postponement. 7. The position of the defense is as follows; the evidence that the State of Florida is relying upon does only shows suspicion that the Defendant could have or might have provoked Travis Mercer on the night of the incident. 8. The evidence that the State of Florida has relied upon does nothing more than show a suspicion that the Defendant provoked Travis Mercer on the night of the altercation. 9. The Defendant has been held without release at the Marion County Jail since August 21 st, 2017, since the Defendant was publicly charged with Second Degree Murder. 10. The Defendant states that he used reasonable force in order to protect himself against Travis Mercer, which eventually ended in the Defendant drawing his fire arm and firing several rounds at Mr. Mercer in self-defense. 10 | P a g e 11. This case is set for jury trial on the Court's two-week trial period commencing month , 2018. Further Affiant Sayeth Naught X Harry Reign attorney of record Sworn and subscribed before me this ___ day of October 2017. X Notary Public 11 | P a g e day of 1 PLEG230 - Criminal Law and Procedures Final Exam Directions and Rubric This Assessment is worth 15% of your overall grade Course Outcomes Completing this Assessment will help you to: Define the elements and defenses required for the classification of criminal acts. Draft and maintain documents utilized in a criminal litigation trial notebook, such as motions, pleadings, and memoranda. Describe, apply, and discuss ethical and professional responsibility rules to situations affecting the legal professional engaged in a criminal litigation practice. Analyze the importance of the procedural guidelines embedded in constitutional amendments governing criminal practice. Evaluate a specific criminal case fact pattern by identifying, differentiating, and analyzing the appropriate primary source(s) of law that apply to the fact pattern. Utilize federal and state legal practice rules and appropriate statutory and case law guidelines to develop and organize a criminal law and procedure reference notebook that includes sample pleadings; discovery requests; and pre-trial, trial, and post-trial process documents. Program Outcomes Describe and discuss the basic responsibilities, legal and procedural theories, and limitations of a paralegal. Define, apply, and defend principles of legal ethics within a variety of settings. Distinguish appropriate legal terminology and utilize terms correctly in legal documents. Design and compose legal documents, including but not limited to correspondence, pleadings, briefs, and memoranda, that are relevant to different substantive areas of law. Utilize electronic and print resources to locate primary and secondary law related legal documents to research, summarize, and evaluate legal issues. Identify and utilize information technology tools and skills in both general and law related office practices. Apply appropriate paralegal specific knowledge, skills and behaviors to analyze and interpret primary and secondary law sources and related legal documents. Institutional Outcomes Information Literacy and Communication - Utilize appropriate current technology and resources to locate and evaluate information needed to accomplish a goal, and then communicate findings in visual, written and/or oral formats. Relational Learning - Transfer knowledge, skills and behaviors acquired through formal and informal learning and life experiences to new situations. Thinking Abilities - Employ strategies for reflection on learning and practice in order to adjust learning processes for continual improvement. Quantitative and Scientific Reasoning - Follow established methods of inquiry and mathematical reasoning to form conclusions and make decisions. Community and Career - Participate in social, learning, and professional communities for personal and career growth. Deadline Due Week 7 by Saturday at 11:59 pm, ET. Directions For this assessment, you will be applying the same hypothetical scenario as your Portfolio Project and Midterm Exam. However, for the Final Exam instead of working for the law firm defending Gregory Zilch, you are working for the District Attorney's Office. You have been assigned the task of drafting papers in opposition to the motion to dismiss filed on behalf of Zilch that is based on the theory of self-defense and, in particular, Florida's \"Stand Your Ground\" Law. Fact Pattern Tavaris Mercer was a 17-year-old boy, who was sent by his mother to spend the summer at his father's house in Ocala, Florida. His mother wanted to avoid him spending time with friends who she deemed to be a negative influence on the teen. PLEG230 - Final Exam Directions 2 Much of the summer passed without incident. On the night of July 3, Tavaris asked his father if he could go to the corner store and get some candy. Since Ocala is a relatively safe suburb, his father let his son go, in spite of the time (which was 9:30pm). The nights in Ocala get a bit chilly, so Tavaris put on a sweatshirt that had a hood on it. He went to the store, purchased a big bag of M&Ms and a soda. He started back to his father's house. The temperature dropped even more since he initially left for his walk, so he put his hood on. Tavaris decided to take a shortcut behind some local homes. Gregory Zilch was a bit edgy that night. As Captain of the local citizens' watch group, Zilch prided himself on keeping the crime rate in the neighborhood down. He was a bit of an intense character, who failed at many things in life, including becoming a police officer. However, he had found some success as Crime Watch Captain. He was very proud of his job, and proud of the 9MM he carried after receiving a permit for it. No other crime watch person had a gun, so he felt special. On the night of July 3, Zilch was patrolling the neighborhood. There had been a rash of recent burglaries, so he was especially observant and decided to carry his 9MM with him. He saw a young African American boy with a hoodie on, walking at a strange pace and looking at the homes. Greg started to get angry, thinking \"here's another one of these thugs trying to take advantage of my neighbors.\" Zilch called the police, and requested assistance. The 911 dispatcher asked for a description, and as Zilch gave the dispatcher the information, he sounded out of breath. The dispatcher asked \"are you following him?\" Zilch responded \"yes.\" The 911 dispatcher told him \"you don't need to do that. Back off. I have units coming now.\" Zilch responded by saying \"they always get away. Not this time. He's not going to get away.\" The 911 dispatcher again reiterated that he should wait for units, but Zilch hung up. Minutes later, a neighbor called, and reported a disturbance. She said she heard yelling. As she was on the phone with 911, both the dispatcher and the neighbor heard someone scream \"NO!\
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