A South Florida man who allegedly opened fire on someone he thought was trying to get into his apartment is facing an attempted murder charge, but his fiancée and attorney said he was protecting his family.
Joshua Rivera was arrested last month on charges including attempted felony murder, aggravated assault with a firearm and misuse of a firearm.
Rivera, 30, remains behind bars without bond, but his family believes the wrong man was charged in the altercation at their Homestead apartment.
Rivera's fiancée, Kasandra Bejarano, said their children believe Rivera is working out of state because she can't explain to them what happened.
"My kids are asking everyday where Josh is at and I have to lie to them and say that he is working far away," she said. "Any guy would have protected his family, anybody."
It was at their Homestead apartment complex where police said Rivera shot at a man who had been knocking on doors in the complex looking for a friend.
"I hear a large bang on the door. It was so scary, the bang was so loud, I could hear it in my whole apartment," Bejarano said. "So, I get up and I see Josh at the door telling this guy to get out and this guy is trying to come into our home."
The police report indicates witnesses saw an altercation, and Rivera pull a gun and allegedly opened fire. The other man, Anthony Trinchet, was grazed by a bullet and treated at the hospital.
The family’s attorney, Michael Pizzi, said Rivera was defending his girlfriend and multiple kids inside their apartment when Trinchet tried rushing inside.
Pizzi said Trinchet was a danger to the couple and their children. In April, six months months before the incident with Rivera, Trinchet was charged with lewd and lascivious behavior with a minor after police said a student contacted school officials. He has entered a not guilty plea to the charge and is out on bond.
"What if he would have came into my home?" Bejarano said. "I have a daughter. I have two boys. Josh was just protecting our family."
Pizzi said he filed a motion on Wednesday with the court to have the attempted murder charge dismissed.
"It’s really the justice system turned upside down," Pizzi said. "A parent who courageously and bravely fends him off and defends his family, a parent who defends his children in their own home in the middle of the night, the state attorney’s office is putting the parent of seven children in jail."
Pizzi said Miami-Dade Judge Mindy Glazer found there was no probable cause for attempted murder when Rivera was initially arrested in early November.
“She laughed this out of court, she threw it out,” Pizzi said.
"The judge threw out the charge. She said 'how is this attempted murder if he was in his home with the kids?" Bejarano said.
But Pizzi said three weeks later when Rivera came back to court on the lesser charges filed against him, the tables turned and the prosecutors brought the most serious charge back and convinced a different judge there was probable cause to hold Rivera.
NBC 6 contacted the state attorney for comment but they don’t normally comment on cases that are working their way through the system.
There is a hearing scheduled Friday on the case.
Pizzi said ultimately he will use the state's so-called "Stand Your Ground" defense if needed. Legal experts will be watching that closely as the family said the intruder got inside the doorway, but it was outside where witnesses said shots were fired, something Rivera isn’t admitting he did.
The Florida law doesn’t require a person to retreat anywhere, but the long held legal "Castle Doctrine" gives a homeowner wide latitude to defend themselves and loved ones on their property. That’s why where the dispute started and ended is a factor.
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