TAMPA — An appeals court will decide whether a Hillsborough County judge erred by not dismissing a murder charge against a tow company owner who claims it was self-defense when he shot and killed a man accelerating toward him and an employee.
Donald Montanez, 47, wants immunity from prosecution on a second-degree murder charge under Florida's "stand your ground" law, which allows people to meet force with force when they feel threatened.
Jay Hebert, Montanez's attorney, argued before the 2nd District Court of Appeal on Tuesday that Circuit Judge Robert Foster misinterpreted the law when he ruled that the threat of imminent danger had already passed when Montanez fired his .40-caliber pistol at Glen Rich, 30.
Foster said the law applies to altercations that take place inside a house or a vehicle. He also said Montanez knew or should have known that he and his employee were no longer in a "zone of uncertainty" as the car came toward them.
Hebert disagreed with those two assertions, saying that the law extends beyond a vehicle or a home. He then cited a case where Foster granted immunity to a man who shot and killed someone during an altercation that took place on a street.
Hebert also said Montanez didn't know whether his employee had jumped out of the path of the car. Hebert said the law allowed Montanez to act as her protector.
"This is a misapplication of the facts of the law," Hebert said of Foster's ruling.
Montanez said he fired once into a car driven by Rich to avoid being killed. An employee said she and Montanez had seconds to jump to safety when Rich drove toward them during an early-morning confrontation on Jan. 8, 2006, near an after-hours club on Hillsborough Avenue. Montanez says Rich became upset after learning his vehicle had been seized because it was parked illegally at a nearby business.
In May, the Hillsborough State Attorney's Office presented evidence that Montanez fired into the passenger's-side window of Rich's vehicle — proof, prosecutors said, that Montanez was no longer in danger.
Assistant Attorney General Timothy Freeland told the appeals panel that for Montanez to claim self-defense for him and his employee, he had to have known that she was still in harm's way. "The fact that he doesn't know where she is, that's a problem," Freeland said.
"Your stance is you don't want us to sanction firing shots on a maybe," appeals Judge Robert J. Morris said.
Morris later added that perhaps that was Foster's intention by including a line in his ruling that Montanez "knew or should have known" his employee's location.
Seconds before the shooting, another employee had come into contact with the car, though prosecutors dispute whether he had been hit or had intentionally jumped on the vehicle.
"It gives the defendant a reasonable basis to assume if it happened to one employee, it could happen to another or it could happen to him," Morris said.
After arguments, Hebert said he is ready to defend Montanez in "any way, shape or form" if the appeals court rules against him.
"This is a case that's going to be somewhat of a cutting-edge case. It's going to help create law."
Kevin Graham can be reached at firstname.lastname@example.org or (813) 226-3433.