Filing # 187585892 E-Filed 12/07/2023 02:47:22 PM

IN THE CIRCUIT COURT OF THE

NINTH JUDICIAL CIRCUIT, IN AND
FOR ORANGE COUNTY, FLORIDA

CASE NUMBER: 2022-CF-010284-A-O

DIVISION 11

STATE OF FLORIDA
PLAINTIFF,
vs.

RAFAEL ROBERTO VILLAVERDE,

DEFENDANT,
/

ORDER GRANTING MOTION TO DISMISS

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

Based upon the evidence presented at the December 1, 2023 evidentiary

hearing, the Court makes the following factual findings:

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,

FL 32809 with another individual. The Defendant’s residence is located within a

multi-unit building with a shared parking lot and a breezeway behind the

Defendant’s unit. The Defendant was armed with a semi-automatic handgun in

the pocket of his shorts.

2. At some point in the morning, Dylan Jimenez and another individual entered 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

hooded sweatshirt and was visibly holding an object in the pocket.

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

right side as Mr. Jimenez approached him.

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

handgun remained at his side during this exchange.

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

firearm remained at his side during this conversation.

6. Unbeknownst to the Defendant, Mr. Jimenez turned around in the breezeway,

pulled a firearm from his sweatshirt pocket, and pointed the firearm in ambush at

the entry of the breezeway.

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

and 776.032. Section 776.012(2) provides as follows:

A person is justified in using or threatening to use deadly force

if he or she reasonably believes that using or threatening to
use such force is necessary to prevent imminent death or
great bodily harm to himself or herself or another or to prevent
the imminent commission of a forcible felony. A person who
uses or threatens to use deadly force in accordance with this
subsection does not have a duty to retreat and has the right
to stand his or her ground if the person using or threatening
to use the deadly force is not engaged in a criminal activity
and is in a place where he or she has a right to be.

It is also important to note that § 776.041 specifies that the

justification in § 776.012 is not available to a person who:

(1) Is attempting to commit, committing, or escaping after

the commission of, a forcible felony; or
(2) Initially provokes the use or threatened use of force
against himself or herself, unless:
(a) Such force or threat of force is so great that the
person reasonably believes that he or she is in imminent
danger of death or great bodily harm and that he or she has
exhausted every reasonable means to escape such danger
other than the use or threatened use of force which is likely
to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical
contact with the assailant and indicates clearly to the
assailant that he or she desires to withdraw and terminate
the use or threatened use of force, but the assailant
continues or resumes the use or threatened use of force.
 Section 776.032 provides that, with certain exceptions not applicable here, a

person who uses force as permitted in § 776.012 is immune from criminal prosecution

and civil action for such use of force.

Once a defendant raises a facially sufficient prima facie claim of self-defense

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

defined the “clear and convincing” standard as follows:

“[c]lear and convincing evidence requires that the evidence

must be found to be credible; the facts to which the witnesses
testify must be distinctly remembered; the testimony must be
precise and explicit and the witnesses must be lacking in
confusion as to the facts in issue. The evidence must be of
such weight that it produces in the mind of the trier of fact a
firm belief or conviction, without hesitancy, as to the truth of
the allegations sought to be established.”

Id. at 480-481.

ANALYSIS

As a threshold issue, the State stipulates the Defense’s Motion to Dismiss

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.

Jimenez’s subsequent attack on the Defendant. Moreover, even assuming the

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

means to escape Mr. Jimenez’s attack other than to return fire.

It is hereby ORDERED and ADJUDGED,

The Motion is GRANTED. Count One (Second Degree Murder with a Firearm) of

the Information is hereby DISMISSED.

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

Filing generated by the ePortal System.

Patricia Nielsen

__________________________________________
Patty Nielsen, Judicial Assistant to Judge Vincent S. Chiu