What is Severance in Florida?

April 1, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

For defendants charged with an offense they are alleged to have committed jointly, Florida courts will often try the accused together. But under certain circumstances, someone can successfully file to sever the trial – in other words, to be separately from one or more co-defendants that they are currently set to be tried with. This article will explore when a defendant is entitled to severance in Florida.

Under Rule 3.152(b) of the Florida Rules of Criminal Procedure, a court shall order a severance of defendants and separate trials before trial if it is necessary to protect a defendant’s right to a speedy trial or to promote a fair determination of the guilt or innocence of one or more defendants. During trial, severance can be granted only with the defendant’s consent and on a showing that it is necessary to achieve a fair determination of guilt or innocence.

There are specific cases in which a court is more likely to grant severance. Florida’s courts have explained that severance may be warranted when co-defendants have antagonistic defenses. Biscardi v. State, 511 So.2d 575 (Fla 4th DCA 1987). Antagonistic defenses occur when each of the co-defendants argues the other is responsible for the charged crime.

The Biscardi court noted that severance might be necessary when one defendant bases his defense on implicating the co-defendant, making their defenses incompatible and antagonistic. In Saavedra v. State, the court also recognized that completely antagonistic defenses could justify severance. 

However, the court also noted that the trial court’s discretion is not abused in denying severance if the evidence against the defendant is overwhelming. Saavedra v. State, 576 So.2d 953 (Fla 1st DCA 1991). Thus, the potential for antagonistic defenses does not always mean severance will be granted.

Courts are granted broad discretion in deciding whether or not severance should be granted. In simpler terms, the court can render a decision either in favor of or against severance, depending on the facts of the case and the arguments made. However, discretion is not unlimited.

The U.S. Supreme Court has held that a denial of severance under circumstances where a defendant has made an out-of-court confession implicating a co-defendant – but does not plan to testify at trial – entitles the co-defendant implicated in the confession to severance. This is because the implicated co-defendant’s attorney would be unable to cross examine the confessing co-defendant before the jury, given they are exercising their right to remain silent. Bruton v. United States, 391 U.S. 123 (1968).

Notably, Bruton was refined by the Supreme Court’s 2023 Samia decision. Samia v. United States, 599 U.S. 635 (2023). In Samia, the petitioner argued that the lower court improperly denied his severance motion due to a non-testifying co-defendant’s out-of-court confession being admitted at trial. 

The Supreme Court narrowed its Bruton rule, holding that unless the confession directly and explicitly implicates the co-defendant, it can still be admitted at trial – so long as the jury is instructed to only consider the confession in evaluating the confessor’s guilt (not Samia’s).

If a defendant moves to sever on the grounds of prejudice, the burden is on them to prove the trial will prevent a fair determination of their guilt or innocence. State v. Talavera, 243 So.2d 595 (Fla. 1971). While some have argued that antagonistic defenses are inherently prejudicial, Florida courts have declined to go that far. McCray v. State, 416 So.2d 804 (Fla 1982). 

In McCray, the Florida Supreme Court ruled that one co-defendant blaming another for the crime at trial did not entitle them to severance. The court noted that a motion to sever must be rooted in a tangible violation of due process, rather than the defendant simply being less likely to be found guilty in the event of severance. 

The likelihood of a severance motion’s success can hinge upon when it is filed. Florida courts have shown extreme reluctance to grant severance once a trial has begun. In Barbon-Zurita, the court held that a severance motion following opening arguments was untimely and its denial did not violate due process, especially when the defendant had previously stipulated to a joint trial. Barbon-Zurita v. State, 415 So.2d 824 (Fla 3rd DCA 1982) 

Critically, a motion for severance must be based in the law. A severance motion based on the mere fact that a tactical advantage (higher chance of acquittal) will be gained by the defendant being tried separately will fail under Florida law.

Returning to McCray, the Florida Supreme Court also held that the possibility of a better chance of acquittal or strategic advantage does not establish the right to severance. And in Fernanders v. State, the court noted that the rule regulating severance is intended to assure a fair determination of each defendant’s guilt or innocence, not to provide tactical advantages. Fernanders v. State, 268 So.3d 941 (Fla DCA 1st 2019).

In summary, a defendant in Florida is entitled to severance if they can show that a joint trial would be prejudicial and prevent a fair determination of their guilt or innocence, particularly when defenses are antagonistic. This decision, however, is largely within the trial court’s discretion. And in the event a severance motion is denied, the burden is on the defendant to demonstrate an abuse of that discretion on appeal.

If someone is charged with an offense for which they are set to be tried alongside other defendants, it is critical to find experienced and trusted legal representation as soon as possible to determine if this can be severed. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for almost 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

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