CopyCited 180 times | Published | Court of Appeals for the Eleventh Circuit | 2010 U.S. App. LEXIS 9106, 2010 WL 1741557
...Penleys’ state law claims.
Under Florida law, “[a] person who uses force as permitted in §
776.012 . . .
is justified in using such force and is immune from criminal prosecution and civil
action for the use of such force.” Fla. Stat. §
776.032....
CopyCited 46 times | Published | Supreme Court of Florida | 35 Fla. L. Weekly Supp. 731, 2010 Fla. LEXIS 2115, 2010 WL 5110231
...Bock and Melanie Dale Surber, *458 Assistant Attorneys General, West Palm Beach, FL, for Respondent. CANADY, C.J. In this case we consider whether a trial court should conduct a pretrial evidentiary hearing and resolve issues of fact when ruling on a motion to dismiss asserting immunity from criminal prosecution pursuant to section 776.032, Florida Statutes (2006), commonly known as the "Stand Your Ground" statute....
...The Fourth District certified that its decision is in direct conflict with the decision of the First District Court of Appeal in Peterson v. State,
983 So.2d 27 (Fla. 1st DCA 2008), which held that the existence of disputed issues of material fact did not warrant denial of a motion to dismiss asserting immunity under section
776.032. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We conclude that where a criminal defendant files a motion to dismiss on the basis of section
776.032, the trial court should decide the factual question of the applicability of the statutory immunity....
...I. BACKGROUND Clarence Dennis was charged by information with the attempted first-degree murder of Gloria McBride. The charge arose from an incident of domestic violence in August 2006. Dennis filed two motions to dismiss the information pursuant to section 776.032(1), Florida Statutes (2006), asserting that he was immune from criminal prosecution because his actions were a justified use of force....
...After expressing uncertainty about whether it had authority to conduct an evidentiary hearing, the trial court rejected Dennis's request for an evidentiary hearing and summarily denied the rule 3.190(c)(3) motion. The trial court concluded that in enacting section 776.032, the Legislature did not intend to take the question of immunity away from the jury....
...Dennis appealed his conviction and sentence, raising two issues. The Fourth District discussed only one issue in its opinion: Only one of the issues warrants discussion; that is, whether the trial court erred in denying Dennis's motion to dismiss on his claim of statutory immunity brought under section 776.032, Florida Statutes, because there were disputed issues of material fact....
...The Fourth District denied Dennis's motion for rehearing or clarification but did certify conflict with Peterson. In Peterson, the State charged the defendant with attempted first-degree murder, and the defendant moved to dismiss the information on the ground that he was immune from criminal prosecution pursuant to section 776.032, Florida Statutes (2006)....
...After conducting an evidentiary hearing, the trial court denied the motion to dismiss on the basis that the defendant had not established immunity "as a matter of fact or law." Peterson,
983 So.2d at 28. The trial court recognized that no procedure had yet been enacted for deciding claims of immunity under section
776.032(1)....
...In response, the State argued that the motion should have been considered under rule 3.190(c)(4) and was properly denied because "any factual dispute should defeat a claim of statutory immunity" under that rule. Peterson,
983 So.2d at 28. The First District rejected the State's argument that a motion to dismiss based on section
776.032 immunity must be denied whenever there are disputed material facts. Based upon its conclusion that the Legislature "intended to establish a true immunity and not merely an affirmative defense," the First District outlined a procedure for use in ruling on motions to dismiss pursuant to section
776.032....
...We accepted jurisdiction based on the certified conflict on the question of whether the trial court should conduct a pretrial evidentiary hearing and resolve disputed issues of material fact to rule on a motion to dismiss asserting immunity from criminal prosecution pursuant to section 776.032....
...He asserts that the trial court erred in summarily denying his motions to dismiss and that the trial court should have conducted an evidentiary hearing on his claim of immunity. The State contends that the trial court correctly found that a claim of immunity pursuant to section 776.032 is properly raised and resolved under rule 3.190(c)(4), which requires that the motion to dismiss be denied where there are disputed material facts. The State further asserts that to proceed to trial, section 776.032 requires only a showing that there is probable cause to believe that the defendant's use of force was unlawful. II. ANALYSIS In the analysis that follows, we first explain why we approve the Peterson procedure for ruling on motions to dismiss filed pursuant to section 776.032. We then explain why Dennis is not entitled to relief despite the trial court's denial of an evidentiary hearing on his motions to dismiss. Dennis and Peterson both filed motions to dismiss the charges against them on the basis of section 776.032, Florida Statutes (2006). Section 776.032, which became effective October 1, 2005, provides: (1) A person who uses force as permitted in s....
...(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). § 776.032, Fla....
..."[S]tatutory enactments are to be interpreted so as to accomplish rather than defeat their purpose." Reeves,
957 So.2d at 629 (quoting Lewis v. Mosley,
204 So.2d 197, 201 (Fla. *462 1967)). In resolving the conflict issue, we conclude that the plain language of section
776.032 grants defendants a substantive right to assert immunity from prosecution and to avoid being subjected to a trial. We further conclude that the procedure set out by the First District in Peterson best effectuates the intent of the Legislature. Section
776.032(1) provides, in part, that a "person who uses force as permitted in s....
...776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer ... who was acting in the performance of his or her official duties." Section 776.032(1) defines "criminal prosecution" as including "arresting, detaining in custody, and charging or prosecuting the defendant." Similarly, the preamble of the law creating section 776.032 states that "the Legislature finds that it is proper for law-abiding people to protect themselves, their families, and others from intruders and attackers without fear of prosecution or civil action for acting in defense of themselves and others." Ch.2005-27, at 200, Laws of Fla. (emphasis added). While Florida law has long recognized that a defendant may argue as an affirmative defense at trial that his or her use of force was legally justified, section 776.032 contemplates that a defendant who establishes entitlement to the statutory immunity will not be subjected to trial. Section 776.032(1) expressly grants defendants a substantive right to not be arrested, detained, charged, or prosecuted as a result of the use of legally justified force. The statute does not merely provide that a defendant cannot be convicted as a result of legally justified force. This plain reading of section 776.032 compels us to reject the State's contention that a defendant must raise a pretrial claim of immunity only in a rule 3.190(c)(4) motion to dismiss....
...Pollock,
600 So.2d 1313, 1314 (Fla. 3d DCA 1992)). If the State specifically alleges that the material facts are in dispute or that the facts refute the defendant's claim, the motion to dismiss must be denied. State v. Kalogeropolous,
758 So.2d 110, 112 (Fla. 2000). Section
776.032 does not limit its grant of immunity to cases where the material facts are undisputed. Thus, treating motions to dismiss pursuant to section
776.032 in the same manner as rule 3.190(c)(4) motions would not provide criminal defendants the opportunity to establish immunity and avoid trial that was contemplated by the Legislature. Florida Rule of Criminal Procedure 3.190(b)rather than rule 3.190(c)(4) provides the appropriate procedural vehicle for the consideration of a claim of section
776.032 immunity....
...Rule 3.190(b) provides generally that "[a]ll defenses available to a defendant by plea, other than not guilty, shall be made only by motion to dismiss the indictment or information." Dennis's failure to identify the pertinent subdivision of rule 3.190 in his motions to dismiss did not foreclose Dennis's argument that section 776.032 required the trial court to make a pretrial evidentiary determination concerning the applicability of the statutory immunity....
...ts should avoid readings that would render part of a statute meaningless.'" Martinez v. State,
981 So.2d 449, 452 (Fla.2008) (quoting State v. Bodden,
877 So.2d 680, 686 (Fla. 2004)). Accordingly, the grant of immunity from "criminal prosecution" in section
776.032 must be interpreted in a manner that provides the defendant with more protection from prosecution for a justified use of force than the probable cause determination previously provided to the defendant by rule....
...urisdiction over the defendant). Because the trial court's error in this case was harmless beyond a reasonable doubt, Dennis is not entitled to relief. III. CONCLUSION We conclude that where a criminal defendant files a motion to dismiss pursuant to section 776.032, the trial court should decide the factual question of the applicability of the statutory immunity. A motion to dismiss on the basis of section 776.032 immunity is not subject to the requirements of rule 3.190(c)(4) but instead should be treated as a motion filed pursuant to rule 3.190(b)....
CopyCited 31 times | Published | Florida 1st District Court of Appeal | 2008 WL 1805499
...Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Respondent. KAHN, J. Petitioner seeks a writ of prohibition to review an order denying his motion to dismiss based on the statutory immunity established by section 776.032(1), Florida Statutes (2006)....
...The State charged petitioner with one count of attempted first-degree murder, alleging that petitioner shot his brother with a firearm. Petitioner moved to dismiss the information on the ground that he was immune from criminal prosecution pursuant to section 776.032, Florida Statutes (2006), because the shooting occurred when petitioner's brother assaulted him after having been asked to leave petitioner's home....
...After consideration of the evidence and the arguments, the trial court entered an order denying petitioner's motion to dismiss. The trial court correctly observed that no rule or procedure had yet been enacted to guide trial courts in deciding a claim of immunity brought under section 776.032(1)....
...Petitioner now seeks a writ of prohibition, arguing he was entitled to immunity as a matter of law. The State responds, suggesting, among other things, that any factual dispute should defeat a claim of statutory immunity, and further suggesting that a motion under section 776.032 should be treated as having been brought *29 under Florida Rule of Criminal Procedure 3.190(c)(4)....
...Ch.2005-27, § 5, at 202, Laws of Fla. This law, as codified, provides that a person who uses force as permitted in section
776.013 is justified in using such force and is immune from criminal prosecution as well as civil action for the use of such force. §
776.032, Fla....
CopyCited 22 times | Published | Florida 2nd District Court of Appeal
...BADALAMENTI, Judge.
Willie Jefferson petitions this court for a writ of prohibition seeking review
of the trial court's order summarily denying his motion to dismiss asserting Stand Your
Ground immunity from prosecution under sections
776.012(2) and
776.032(1), Florida
Statutes (2017). Interpreting the recently amended section
776.032, the Stand Your
Ground statute, the trial court held that petitioner's mere claim of entitlement to immunity
in a motion to dismiss was insufficient to trigger the State's burden to overcome the
claim by clear and convincing evidence....
...We hold that the procedure employed by the trial
court to deny petitioner Stand Your Ground immunity from criminal prosecution
departed from the essential requirements of the law. We thus grant the petition under
our certiorari jurisdiction and quash the trial court's order. As will be explained, section
776.032(4) requires the trial court to first determine the facial sufficiency of a petitioner's
motion to dismiss asserting a claim for Stand Your Ground immunity, and, if it finds the
motion facially sufficient, to then conduct an evident...
...evidence, [petitioner] is entitled to immunity from prosecution
and therefore the information in this case should be
dismissed.
The trial court heard argument on the procedure that should be employed
pursuant to the newly amended section 776.032 at a Stand Your Ground evidentiary
hearing. Petitioner's counsel argued that section 776.032(4) requires only that
petitioner raise a prima facie claim of self-defense immunity....
...Because, petitioner's
counsel argued, petitioner's motion raised a facially sufficient prima facie claim, the
burden was on the State to overcome that claim by clear and convincing evidence.
The State responded that the filing of the motion to dismiss pursuant to
section 776.032 put petitioner's credibility at issue....
...evidentiary hearing. This prompted the trial court to ask petitioner's counsel the
following question: "[I]f it's the defendant who makes the assertion, why isn't that a
waiver of immunity in its cross-examination?" Petitioner's counsel explained that before
section 776.032 was amended in 2017, the accused had the burden of proving his
entitlement to Stand Your Ground immunity at a hearing on the motion to dismiss. This
burden, petitioner's counsel explained, left many with a choice between a statutory right
to immunity and a constitutional right against self-incrimination. According to petitioner's
counsel, by amending section 776.032 in 2017 to place the burden on the State "to
overcome" a criminal defendant's prima facie claim of immunity, the legislature
-4-
eliminated a criminal defendant's evidentiary burden to prove his entitlement to Stand
Your Ground immunity from criminal prosecution.
The trial court then set forth its interpretation of section 776.032(4) as
follows:
Well, I'll tell you, the impression I got is that you raise your
claim and the State gets to challenge the legal sufficiency of
the claim....
...Although orders denying motions to dismiss based on
grounds other than immunity do not normally invoke our certiorari jurisdiction, petitioner
complains that the ruling at issue has deprived him of a proper hearing on his claim to
immunity from prosecution pursuant to section 776.032(4)....
...e statute" and
"relief by direct appeal would be no relief at all").
Discussion
Petitioner argues that the trial court erred by determining that the State
carried no evidentiary burden under section 776.032(4) until he first presented a prima
facie claim of entitlement to immunity by physical evidence or live testimony subject to
cross-examination proffered at a Stand Your Ground hearing. We agree.
As an initial matter, we note that the trial court made no factual findings
below. Accordingly, we are presented with the interpretation of section 776.032, which
"is a purely legal matter and therefore subject to the de novo standard of review."
Kasischke v....
...Baker,
668 So. 2d 989, 990-91 (Fla. 1996))).
A Brief History of Florida's Stand Your Ground Law
As background, the Stand Your Ground statute was first enacted in 2005.
Ch. 05-27, § 4, at 200, Laws of Fla.; see also §
776.032, Fla....
...Previous versions of the statute
were silent as to the procedure that a trial court should follow when an accused
asserted his immunity from criminal prosecution pursuant to it. Responding to this
omission, the supreme court held that the accused initiates the process of asserting
immunity on the basis of section
776.032, as the petitioner did here, by filing a pretrial
motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(b). Dennis,
51
So. 3d at 463.
The text of prior versions of section
776.032 was also wholly silent as to
which party bore the evidentiary burden to prove or disprove an accused's assertion of
entitlement to Stand Your Ground immunity: was it the accused's burden to prove his
entitlement to immunity or the State's burden to disprove the accused's assertion of
entitlement to immunity? And section
776.032 was wholly silent as to what quantum of
evidentiary proof was required. See Bretherick v. State,
170 So. 3d 766, 775-76 (Fla.
-9-
2015) (examining the development in the district courts of the burden of proof
requirement under the 2011 version of section
776.032).
One quite obvious and common thread seen in the development of the
Stand Your Ground case law in the district courts of appeal, and ultimately the supreme
court, is the perceived impracticality of a procedure requir...
...ranches. See id. at
778 ("Requiring the State to prove its case twice would also cause a tremendous
expenditure of time and resources.").
In 2015, the supreme court addressed these questions and concerns
under a previous version of section 776.032, holding that the accused had the burden to
both raise a claim of immunity and prove entitlement to immunity from criminal
prosecution by a preponderance of evidence....
...And the dissent further noted that the majority's practical
concerns "cannot justify curtailing the immunity from trial under the Stand Your Ground
law for those individuals whose use of force or threat of force is legally justified under
the governing statutory standard." Id.
The Newly Added Text of Section 776.032(4)
Having set forth this brief history of Florida's Stand Your Ground law, we
turn to the text of the recently amended section 776.032. During its 2017 session, the
legislature amended section 776.032 to include a new subsection which unambiguously
set forth that "the burden of proof is on the party seeking to overcome the immunity from
criminal prosecution." See ch....
...evidentiary burden on petitioner to establish a "prima facie claim" of self-defense in
order to trigger the State's burden to "overcome" this claim "by clear and convincing
evidence," as it contravenes the plain and ordinary meaning of the text of section
776.032(4)....
...2d DCA May 4, 2018) ("Thus, as
it now stands, the State bears the burden of disproving, by clear and convincing
evidence, a facially sufficient claim of self-defense immunity in a criminal prosecution.").
By adding subsection (4) to section
776.032, the legislature set forth in no
uncertain terms that the "party seeking to overcome" the immunity from criminal
prosecution—the State—has the evidentiary "burden of proof" and that the quantum of
proof is "by clear and convincing evidence."
The text of section
776.032(4) directs a party seeking immunity from
criminal prosecution to "raise[]" a "prima facie claim" of self-defense as described in
section
776.032(1). See §
776.032(4) (referring to section
776.032(1)'s inclusion of the
affirmative defenses of justifiable self-defense and use of force set forth in sections
776.012, .013, and .031). As an initial matter, section
776.032 does not define "raise,"
- 12 -
"prima facie," or "claim." When a word or phrase in a statute is not expressly defined, it
is "appropriate to refer to dictionary definitions" in order to discern the plain and ordinary
meaning of that word or phrase....
...yet to be
disproved or rebutted by someone.
The State asserts that the person—here, the petitioner—asserting the yet
to be proven immunity claim has the evidentiary burden to prove it. We need not look
further than the text of section 776.032(4) to reject that interpretation. First, we have
established that a "prima facie claim" is a fact or right that has yet to be disproven. But
there's additional text to support our rejection of the State's interpretation. Specifically,
by amending section 776.032 to add subsection (4), the legislature merely required that
"a prima facie claim of self-defense immunity from criminal prosecution ....
...o demonstrate the particular
self-defense statute are present. This is confirmed by the legislature's refusal to
prescribe an evidentiary "burden of proof" to the person asserting immunity in the Stand
Your Ground statute.
Instead, section 776.032 prescribes one, and only one, "burden of proof,"
which is set forth in the legislature's 2017 addition of subsection (4) to section 776.032.
That "burden of proof" is placed on the "party seeking to overcome" the "immunity" from
"criminal prosecution," which is, of course, the State. § 776.032(4). We know it is an
evidentiary burden because the legislature told us: it directed that the State must
overcome the immunity "by clear and convincing evidence." § 776.032(4) (emphasis
added).
Thus, section 776.032(4) plainly states that there is no evidentiary burden
upon the person seeking Stand Your Ground immunity....
...tand Your Ground immunity bore the
burden to prove his immunity by a preponderance of the evidence.
170 So. 3d at 774.
Indeed, we must presume that the legislature understood the plain and ordinary
meaning of the words and phrasing it codified in section
776.032(4)....
..."testimony or physical
evidence . . . subject to cross examination by the [S]tate in order to establish that a
claim for immunity is valid" is a departure from the essential requirements of the law set
forth in the legislature's 2017 amendment to section 776.032....
...e a prima facie claim of Stand Your
Ground immunity based on self-defense at a pretrial hearing.
Although we both recognize and appreciate the legitimate concerns raised
by the trial court, its interpretation contravenes the text of section 776.032(4). The
practical and financial impact on both the executive and judicial branches are concerns
for the legislature to address, not the courts.
- 17 -
We interpret section 776.032(4)'s requirement of a prima facie claim of
self-defense immunity from prosecution to be raised "at a pretrial immunity hearing" to
mean that an accused must simply allege a facially sufficient prima facie claim of
justifiable use of force under chapter 776 in a motion to dismiss filed under rule 3.190(b)
and present argument in support of that motion at a pretrial immunity hearing. While the
addition of subsection (4) to section 776.032 appears to be an obvious response to the
supreme court's decision in Bretherick, the legislature did not alter the procedure for
asserting a claim of self-defense immunity that the supreme court set forth in Dennis.
See City of Hollywood v....
...available witness to the events leading to an act that is claimed to be justifiable use of
force. This may result in great difficultly for the State to overcome the accused's prima
facie claim by clear and convincing evidence.3 But our result here is mandated by the
text of section 776.032(4).4
2To the extent that the State asserted below that it could not refute
petitioner's claims without an opportunity to challenge his credibility through cross-
examination, we note that the State would be in the sam...
...the same acts were not justifiable
self-defense.
4In Langel v. State,
255 So. 3d 359, 362-363 (Fla. 4th DCA 2018), the
Fourth District explained that raising a prima facie claim of self-defense immunity from
criminal prosecution under section
776.032(4) ordinarily "require[s] the defendant to
testify or to otherwise present or point to evidence from which the elements for
justifiable use of force can be inferred." Because the petitioner in Langel was seeking
retroactive application of the 2017 amendment to section
776.032(4) and the Fourth
District had already determined that the amendment cannot be applied retroactively in
Hight v....
...3d 1137 (Fla. 4th DCA 2018), this language from Langel is dicta.
See Lewis v. State,
34 So. 3d 183, 186 (Fla. 1st DCA 2010) ("When a court makes a
- 19 -
Should our interpretation of the text of section
776.032(4) not reflect the
legislature's intent, it is up to the legislature to clarify its intent by amending the statute.
Unless and until that occurs, courts are duty bound to carry out the legislative intent by
mandating that the State...
...er, we note that the Langel
court explicitly rejected the definition of "prima facie case" requiring "production of
enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's
favor" when interpreting subsection (4) of 776.032....
CopyCited 18 times | Published | Florida 3rd District Court of Appeal | 2014 WL 20660, 2014 Fla. App. LEXIS 15
...erview, he subsequently was arrested and charged with two counts of second degree murder. Mobley claimed below and now claims here that these facts are undisputed and demonstrate that he is immune from prosecution as provided by sections
776.012 and
776.032 of the Florida Statutes....
...obligation to retreat, on those who use deadly force reasonably believing that the use of such force is necessary to either prevent imminent death or great bodily harm to self or others or to prevent the imminent commission of a forcible felony. See § 776.032, Fla....
...to s.
776.013”). An objective standard is applied to determine whether the immunity provided by these provisions attaches. See Montanez v. State,
24 So.3d 799, 803 (Fla. 2d DCA 2010) (confirming that in determining whether the immunity accorded by section
776.032 attaches, “the objective, reasonable person standard by which claims of justifiable use of deadly force are measured” should be applied)....
...Mobley’s use of deadly force was justified, the motion to dismiss should have been granted. See Dennis v. State,
51 So.3d 456, 460 (Fla.2010) (confirming that, where a defendant claims immunity from prosecution under sections
776.012,
776.013 and
776.032, the court below must determine whether that defendant has shown by a preponderance of the evidence that the immunity attaches); Vino,
100 So.3d at 717 (“When a defendant invokes the statutory immunity, the trial court must hold a pre-trial...
CopyCited 13 times | Published | Supreme Court of Florida | 2017 WL 4296212
...at 471.
Before this hearing could be held, Patel filed a petition for writ of
prohibition with the Second District, arguing that the circuit court lacked
jurisdiction over him in the civil case based upon the immunity determination in
the criminal case. The Second District granted Patel’s petition, holding that
section 776.032, Florida Statutes (2008), guarantees a single Stand Your Ground
-2-
immunity determination for both criminal and civil actions and certifying direct
conflict with Flemmings....
...nst
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.
§
776.012(1), Fla. Stat. (2008).1 Section
776.032 also provides immunity for a
person who lawfully uses force in self-defense:
(1) A person who uses force as permitted in s....
...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).
§ 776.032(1), (3), Fla. Stat. (2008) (emphasis added). We have recognized that
“the plain language of section 776.032 [of the Stand Your Ground law] grants
defendants a substantive right to assert immunity from prosecution and to avoid
being subjected to a trial.” Dennis v....
...y purportedly guaranteed by the plain
2. A recent amendment to the Stand Your Ground law now places the
burden on the State to prove by clear and convincing evidence that the defendant is
not entitled to immunity from criminal prosecution. § 776.032(4), Fla....
...Stat.
(2017).
-4-
language of this statute in the criminal context, for the simple reason that there
appears to be no way to do so in most cases.
For example, the statute purports to grant immunity from arrest, detention,
and prosecution. § 776.032(1), Fla....
...2d at 920. The Stand Your Ground law, by contrast, does
not purport to modify the mutuality of parties doctrine, nor, for reasons already
explained, does it express a clear intent to do so.
Fourth, the civil attorney’s fees and costs provision in section 776.032(3)
implies recognition by the Legislature that civil immunity will be determined
separately in a civil proceeding....
...The Second District read the language in subsection (3)—providing for
civil fees and costs “if the court finds that the defendant is immune from
prosecution as provided in subsection (1)”—as referring to the criminal immunity
finding, based upon the reference to subsection (1). § 776.032(3), Fla....
CopyCited 12 times | Published | Florida 4th District Court of Appeal | 2009 Fla. App. LEXIS 711, 2009 WL 223109
...Rehearing Denied February 10, 2009. *23 Ralph S. Behr, Fort Lauderdale, for petitioner. No appearance required for respondent. MAY, J. The defendant filed a petition for writ of prohibition challenging the trial court's failure to find the defendant immune under section 776.032, Florida Statutes (2008), the "Stand Your Ground" law....
...t failed to make a probable cause finding that the force he used was unlawful. We disagree and deny the petition. We write to clarify the procedure to be followed in handling Florida Rule of Criminal Procedure 3.190(c)(4) motions to dismiss based on section
776.032. In doing so, we certify conflict with the First District Court of Appeal in Peterson v. State,
983 So.2d 27 (Fla. 1st DCA 2008). The State charged the defendant with attempted murder. The defendant filed a motion to dismiss, pursuant to section
776.032 and Florida Rule of Criminal Procedure 3.190(c)(4)....
...icle with a knife, forced his way into the apartment, and attacked the victim with a knife. Based on this testimony, the trial court found the defendant had not established by a preponderance of the evidence that he was immune from prosecution under section 776.032....
...e person using 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. § 776.032(1), Fla. Stat. (2007). The statute then provides for law enforcement to make an initial determination of whether there was probable cause that the force used was unlawful. § 776.032(2), Fla....
...In enacting the statute, however, the legislature did not restrict the time frame for determining immunity, but rather provided a time continuum stretching across the entire criminal process. When rule 3.190(c)(4) is used as the vehicle to raise the issue of immunity under section 776.032(2), that rule provides the procedural framework by which the court makes its determination....
...earing in this case. Nonetheless, I think the first district was correct in holding that the trial judge must make the initial decision whether the defendant has met her or his burden of establishing the right to immunity, and hence dismissal, under section 776.032, Florida Statutes....
...This would be so whether or not the state has filed a "traverse" as provided in Florida Rule of Criminal Procedure 3.190(d). In my view, a traverse would not automatically send the case to the jury. And if a trial court were to find entitlement to section 776.032 immunity and dismiss the charges, such a ruling would then be subject to immediate appellate review....
CopyCited 11 times | Published | Florida 3rd District Court of Appeal | 2015 Fla. App. LEXIS 5039, 2015 WL 1578849
...Goodman (Hollywood), for petitioner.
Pamela Jo Bondi, Attorney General, for respondent.
Before WELLS, SUAREZ, and SALTER, JJ.
SUAREZ, J.
Eduardo Enrique Viera petitions this Court for a writ of prohibition seeking
review of the circuit court's order denying his motion to dismiss pursuant to
Section 776.032, Florida Statutes (2011), the criminal charges of attempted murder
with a deadly weapon and/or aggravated battery. We deny the petition for writ of
prohibition.
Viera was charged with attempted murder for assaulting Richard Osorio
with a screwdriver. Prior to trial, Viera claimed immunity from prosecution
pursuant to section 776.032(1), Florida Statutes (2011). 1 At a pretrial evidentiary
hearing to determine the factual basis for the applicability of immunity,2 the trial
1 § 776.032 (1), Florida Statutes (2011), also known as the Stand Your Ground law,
provides:
A person who uses or threatens to use force as permitted in s....
...Peterson v. State,
983
So. 2d 27 (Fla. 1st DCA 2008), as adopted by this Court in State v. Yaqubie,
51
So. 3d 474, 475-76 (Fla. 3d DCA 2010), to determine whether a preponderance of
the evidence showed whether Viera is immune from prosecution under section
776.032....
...ajority opinion in the present case.
Because the majority’s summary of Mobley is not an essential part of our
consideration of the case at hand, and based on the record before us, I concur that
Viera’s petition must be denied.
5 § 776.032, Fla....
CopyCited 11 times | Published | Florida 2nd District Court of Appeal | 2013 WL 1442150, 2013 Fla. App. LEXIS 5670
...Little seeks certiorari review of the circuit court’s order denying his motion to dismiss the criminal charge of second-degree murder with a firearm. Little argued that he shot the victim in self-defense and was entitled to immunity from criminal prosecution under section 776.032(1), Florida Statutes (2009), which is part of what is commonly known as the “Stand Your Ground” law....
...Thus, we review the court’s legal findings de novo and we review the court’s factual findings for competent, substantial evidence. Hair,
17 So.3d at 805 . B. Propriety of the Denial of the Motion to Dismiss on the Merits The Stand Your Ground law is codified in chapter 776, Florida Statutes (2009). Section
776.032(1) grants criminal immunity to persons using force as permit *218 ted in sections
776.012,
776.013, or
776.031. In this case, Little argued he was entitled to immunity under section
776.032(1) because his use of force was permitted in section
776.012(1)....
...ruling, or a “tipsy coachman” argument. 2 C. State’s Tipsy Coachman Argument The State argues that regardless of whether Little established that his use of deadly force was permitted in section
776.012(1), he was not entitled to immunity under section
776.032(1) because his use of force would not have been permitted in section
776.013(3)....
...the person must not be engaged in an unlawful activity. Because Little was a felon in illegal possession of a firearm, the State submits that he was engaged in an unlawful activity and cannot obtain immunity under any of these statutory provisions. Section
776.032(1) provides, in pertinent part, “A person who uses force as permitted in s.
776.012, s.
776.013, or s.
776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force.... ” Because section
776.032(1) grants criminal immunity to persons using force as permitted in section
776.012, section
776.013, or section
776.031, it should be construed to allow a defendant to claim immunity based on the use of force permitted in any of these provisions....
...801, 805 (1927) (“[T]he word ‘or’ is usually, if not always, construed judicially as a disjunctive unless it becomes necessary in order to conform to the clear intention of the Legislature to construe it conjunctively as meaning ‘and.’ ”). Despite the disjunctive language in section
776.032(1), the State asserts that the legislature did not intend to provide immunity based on the use of force as permitted in section
776.012(1) because section
776.012(1) conflicts with section
776.013(3)....
...construed together to harmonize the statutes and to give effect to the Legislature’s intent.’ ” Id. (quoting Fla. Dep’t of State v. Martin,
916 So.2d 763, 768 (Fla.2005)). We conclude that the plain language of sections
776.012,
776.013, and
776.032 can be understood as granting immunity to a person who qualifies under either section
776.012(1) or
776.013(3). To arrive at this conclusion, we will examine the provisions in sections
776.012 and
776.013 in pari materia to determine whether the legislature intended for each section to provide a separate basis for immunity under section
776.032(1)....
...sary to prevent imminent death or great bodily harm ... or to prevent the imminent commission of a forcible felony.” (Emphasis added.) As for criminal immunity, a person engaged in an unlawful activity would not be entitled to claim immunity under section
776.032(1) based on the use of force as permitted in section
776.013(3). But section
776.013(3) provides only one means of obtaining immunity under section
776.032(1). Section
776.012(1) provides another means of obtaining immunity for individuals who would not qualify for immunity under section
776.013(3). And section
776.032(1) expressly provides for immunity based on the use of force as permitted in section
776.012. In summary, section
776.032(1) provides for immunity from criminal prosecution for persons using force as permitted in section
776.012, section
776.013, or *222 section
776.031....
...And, as set forth above, Little established by a preponderance of the evidence that his use of force was justified to prevent his imminent death or great bodily harm as provided for in section
776.012(1). Accordingly, Little was entitled to immunity under section
776.032(1)....
...itled to immunity because he was engaged in an unlawful activity. Id. The Fourth District has not addressed whether a defendant would be entitled to immunity based on the use of force as permitted in section
776.012(1). As we have already explained, section
776.032(1) provides for immunity based on the use of force as permitted in three separate statutory provisions: section
776.012, section
776.013, or section
776.031....
...). D. Certification of Conflict and Question for Resolution by Supreme Court To the extent that the Fourth District’s decision in Hill can be read as holding that a defendant who is engaged in an unlawful activity is not entitled to immunity under section 776.032(1), we certify conflict....
...We therefore certify the following question as one of great public importance: IS A DEFENDANT WHO ESTABLISHES BY A PREPONDERANCE OF THE EVIDENCE THAT HIS USE OF DEADLY FORCE IS PERMITTED IN SECTION
776.012(1), FLORIDA STATUTES (2009), ENTITLED TO *223 IMMUNITY UNDER SECTION
776.032(1) EVEN THOUGH HE IS ENGAGED IN AN UNLAWFUL ACTIVITY AT THE TIME HE USES THE DEADLY FORCE? Petition granted....
CopyCited 10 times | Published | Florida 1st District Court of Appeal | 2012 Fla. App. LEXIS 13360, 2012 WL 3238759
...reasonable fear of imminent peril of death or great bodily harm to himself or herself or another....” §
776.013(1). Chapter 2005-27 amended two existing statutes: sections
776.012 and
776.031; and it created two new statutes: sections
776.013 and
776.032....
...nent commission of a forcible felony; or (2) Under those circumstances permitted pursuant to s.
776.013 [which permits use of defensive force intended or likely to cause death or great bodily harm in a dwelling, residence or occupied vehicle]. [ 1 ] Section
776.032 provides that a person using force as permitted by sections
776.012,
776.013 or
776.031, “is immune from criminal prosecution and civil action for the use of such force” subject to exceptions not applicable here. Under the statute, a defendant is not limited to asserting an affirmative defense at trial that his or her use of force was legally justified. As the Supreme Court explained in Dennis v. State,
51 So.3d 456, 462 (Fla.2010): Section
776.032 contemplates that a defendant who establishes entitlement to *11 the statutory immunity will not be subjected to trial. Section
776.032(1) expressly grants defendants a substantive right to not be arrested, detained, charged, or prosecuted as a result of the use of legally justified force. The statute does not merely provide that a defendant cannot be convicted as a result of legally justified force. The appropriate procedural vehicle to raise immunity under section
776.032 is a pretrial motion to dismiss under rule 3.190(b), Florida Rules of Criminal Procedure....
CopyCited 9 times | Published | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 19299, 2009 WL 4723310
...We reverse McDaniel's conviction and remand for further proceedings consistent with this opinion. Prior to trial, McDaniel filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(b). He claimed in his motion that he is immune from criminal prosecution pursuant to section
776.032(1), Florida Statutes (2007), because he has a valid defense of justifiable use of force under section
776.013, commonly known as the castle doctrine, and section
776.031, the defense of others statute....
...McDaniel filed a response to the State's traverse, alleging that his motion to dismiss "is not based on the Rule 3.190(c)(4) grounds that there are no material disputed facts, [but] rather on the grounds that [McDaniel] is immune from prosecution pursuant to [section] 776.032." The trial court held an evidentiary hearing on March 10, 2008....
..."there is enough disputed evidence . . . where it is appropriate for jury consideration." The defense arguedcontinuing to advance its position that the motion was not one for dismissal pursuant to rule 3.190(c)(4) but one for immunity pursuant to section 776.032 that McDaniel was immune from prosecution because the evidence showed that the victim was attempting to commit a forcible felony against McDaniel's mother and that McDaniel was acting in defense of his mother and his home....
...eated the motion as one for dismissal pursuant to rule 3.190(c)(4)as the State was treating itand denied it on the basis that there were disputed issues of material fact or whether the trial court treated the motion as one for dismissal based on section 776.032 immunityas the defense was treating itand denied it on the basis that McDaniel had not established his entitlement to immunity pursuant to section 776.032....
...home. McDaniel was found guilty and sentenced to ten years in prison followed by five years' probation. On appeal, McDaniel argues that the trial court erred in denying his motion to dismiss because he presented evidence establishing immunity under section 776.032. He also argues that it is not clear if the trial court applied the proper standard for a motion to dismiss based on immunity from prosecution under section 776.032....
...He claims that even though he argued in his response to the State's traverse that the standard of rule 3.190(c)(4) should not be applied, the State proceeded on the theory that the motion to dismiss should not be granted because there are material disputed facts. Section 776.032(1) provides that "[a] person who uses force as permitted in s....
...immunity attaches." Id.; see also Gray v. State,
13 So.3d 114, 115 (Fla. 5th DCA 2009) (on motion for certification) (agreeing with Peterson ). But see Velasquez v. State,
9 So.3d 22, 24 (Fla. 4th DCA 2009) (holding that a motion to dismiss based on section
776.032 immunity is governed by rule 3.190(c)(4) and should be denied if factual disputes exist; certifying conflict with Peterson )....
...This court has agreed with Peterson and held that the rule 3.190(c)(4) standard, which provides for a dismissal when "[t]here are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant," is not appropriate for a motion or petition to determine immunity under section 776.032....
...Therefore, we reverse McDaniel's conviction and remand for a new hearing on McDaniel's motion to dismiss at which the trial court shall apply the appropriate standard. If the trial court concludes after a new hearing that McDaniel is entitled to immunity under section 776.032, it shall enter an order to that effect and dismiss the information with prejudice....
CopyCited 8 times | Published | Florida 1st District Court of Appeal | 2008 WL 4722492
...And she was referring to here when he was grabbing himself about grabbing the wound. The questioning of witness Walton ended. Appellant contends that the trial court's initial ruling sustaining the objection to the question of why Investigator Walton had ruled out self-defense is correct. Section 776.032(2), Fla....
...Allowing this testimony to be adduced was error. The State contends that it was not an abuse of discretion to allow Walton to testify that he had ruled out self-defense. Several statutes set out the parameters as to what force is allowed under particular circumstances. Section 776.032(1), Florida Statutes (2006), states: 776.032 Immunity from criminal prosecution and civil action for justifiable use of force....
..."`Residence' means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest." §
776.013(5)(b), Fla. Stat. The evidence indicated that Appellant and Ernest Lamar both occupied the residence where he was killed. Before the enactment of sections
776.032 and
776.013, Florida Statutes, in 2005, "a person was justified in using deadly force when the person was attacked in his or her *163 home and `reasonably believed deadly force was necessary to prevent "imminent death or great bodily harm to...
...However, the jury did not need the investigator's opinion for the jury to determine whether Appellant had acted in self-defense. The error occurred in allowing Walton to opine to the jury that the nature of the stab wound led him to rule out self-defense. Appellant correctly asserts that the mere fact that section 776.032(2) required the investigator(s) to determine whether "there is probable cause that the force that was used was unlawful" does not automatically bootstrap this information into admissible evidence....
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 2013 WL 2359485, 2013 Fla. App. LEXIS 8593
...DenDekker is employed by Orlando Health Systems, which owns South Seminole Hospital. .The record reflects Spurgeon voluntarily sought treatment at South Seminole Hospital. However, no evidence was introduced to establish the nature of the medical hold. . § 776.032, Fla....
CopyCited 8 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 11593, 2009 WL 2513475
...Bill McCollum, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Respondent. PER CURIAM. Jimmy Hair petitioned this court for a writ of prohibition, contending that he is immune from prosecution on charges of first-degree murder under section 776.032(1), Florida Statutes (2007)....
...The court also found that there were disputed issues of fact which precluded granting of pretrial immunity. ANALYSIS In Peterson v. State,
983 So.2d 27 (Fla. 1st DCA 2008), this court addressed Florida's "Stand Your Ground" law, enacted by the Florida Legislature in 2005 and codified at sections
776.013 through
776.032, Florida Statutes. Section
776.032(1) states that a person using force as permitted in section
776.013, with certain exceptions not applicable here, is immune from criminal prosecution and civil action....
...CONCLUSION Petitioner was aware that Harper, the victim, had unlawfully and forcibly entered the vehicle when he was shot. Hair was therefore authorized by section
776.013(1), Florida Statutes, to use defensive force intended or likely to cause death or great bodily harm and was immune from prosecution for that action under
776.032(1)....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 2009 Fla. App. LEXIS 1952, 2009 WL 605356
...Clarence Dennis appeals his conviction and sentence for felony battery. He raises two issues on appeal, and we affirm as to both issues. Only one of the issues warrants discussion; that is, whether the trial court erred in denying Dennis's motion to dismiss on his claim of statutory immunity brought under section 776.032, Florida Statutes, because there were disputed issues of material fact....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 2014 Fla. App. LEXIS 12999, 2014 WL 4114334
...2d DCA 2013), which held that a person is not precluded from claiming immunity from criminal prosecution under the circumstances in section
776.012, even though the person was engaged in unlawful activity at the time. Id. at 221-22 . The Court reasoned that section
776.032(1), Florida Statutes (2009), provides immunity from criminal prosecution for persons using force as permitted in section
776.012 or section
776.013, and the requirements of each are not identical....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 2012 WL 5233623, 2012 Fla. App. LEXIS 18491
...ief Judge. Tamra Suzanne Leasure was convicted of second-degree murder and sentenced to thirty years in prison after she shot and killed Arthur Tilley. Leasure argues that the trial court erred in denying her motion to dismiss the charge pursuant to section 776.032(1), Florida Statutes (2008), which is known as the “Stand Your Ground” law....
...Motion to Dismiss Prior to trial, Leasure filed a motion to dismiss in which she alleged that she was immune from criminal prosecution under Florida’s Stand Your Ground law because she acted in self-defense. The Stand Your Ground law is codified in section
776.032(1) and grants criminal immunity to persons using force as authorized in sections
776.012,
776.013, or
776.031....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 2014 Fla. App. LEXIS 3620, 39 Fla. L. Weekly Fed. D 543
...Tapia asserted entitlement to immunity based on Florida’s Stand Your Ground laws. 2 The issue of immunity was referred to a general magistrate, who conducted an evidentiary hearing on June 14, 2012. 3 The general magistrate found that Tapia had established his entitlement to immunity under section 776.032, Florida Statutes (2009), applying a preponderance of the evidence standard....
...and can be reversed only if not supported by competent substantial evidence.” Darling v. State,
81 So.3d 574, 577 (Fla. 3d DCA 2012). Chapter 776, Florida Statutes, encompasses what is referred to as Florida’s “Stand Your Ground” law. Under section
776.032(1): A person who uses force as permitted in s.776.012, s.776.013, or s.776.031 is justified in using such force and is immune from criminal prosecution and civil ac *539 tion for the use of such force, unless the person against whom force was used is a law enforcement officer.......
...and Mrs. Pages argue, Tapia’s guilty plea and adjudication of guilt for a battery upon Mrs. Pages established, as a matter of law, that Tapia was “engaged in unlawful activity” when he pushed Dr. Pages, barring Tapia from seeking immunity under section 776.032....
...sh that he was “not engaged in unlawful activity.” However, this “not engaged in unlawful activity” language is not present in the applicable portion of section
776.012, which unambiguously provides for the justified use of non-deadly force. Section
776.032, by its express language, provides immunity for a person “who uses force as permitted in sections
776.012,
776.013 or
776.031.” This language evidences a clear legislative intent to provide alternative bases for asserting immunity under the Stand Your Ground Law....
...2d DCA 2011) (holding “a trial court must accept the magistrate’s findings of fact if they are supported by competent, substantial evidence.”) Affirmed. . Tapia’s car was equipped with a disabling device which renders the vehicle unable to start if it is struck or moved. . Section 776.032(1), Florida Statutes (2009) provides immunity "from criminal prosecution and civil action.” ....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 12499, 2009 WL 2602222
...Max Wesley Horn, Jr., filed a petition for writ of certiorari asking this court to quash the trial court's order denying him immunity from prosecution. We deny the petition. However, we write to discuss and approve of the trial court's procedures in determining that Mr. Horn was not entitled to immunity under section 776.032, Florida Statutes (2007). Facts On March 29, 2008, Mr. Horn shot and killed Joseph Martel, resulting in a charge of second-degree murder. Mr. Horn claimed statutory immunity based upon section 776.032, (commonly known as the "Stand Your Ground" Law), in hopes of avoiding prosecution....
...Martel was still walking towards him trying to get the gun after four shots, but at least one other witness stated that Mr. Horn fired the last two shots down at Mr. Martel while he lay on the ground. One witness testified that Mr. Horn said he shot Mr. Martel because Mr. Martel was "stalking his sister." Analysis Section 776.032(1) authorizes a person to use force in defense in certain situations....
...e force in this case. Pursuant to this section, a person is justified in using deadly force and is under no duty to retreat when he "reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself." Despite section 776.032's broad temporal application, running from before arrest through trial, there is no legislative guidance as to the statute's implementation....
...determine immunity pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). In Velasquez v. State,
9 So.3d 22 (Fla. 4th DCA 2009), the Fourth District disagreed with *839 the First District, holding instead that a petition seeking immunity under section
776.032 should be treated as a motion to dismiss pursuant to rule 3.190(c)(4) and denied when "the facts are in dispute." The court also stated, "We recognize the efficacy of the procedure outlined in Peterson, but disagree that it is within...
...We agree with the Fourth District that a district court has no authority to create a rule of criminal procedure. However, unlike the Fourth, we do not think rule 3.190(c)(4), setting forth the procedure for a motion to dismiss, is appropriately applied to a motion or petition to determine immunity under section 776.032. Instead, we hold that such a motion falls under the general authority granted to trial courts to hear and rule upon motions necessary to resolve criminal cases. [4] Consequently, a motion or petition filed under section 776.032 must comply with the general requirements of rule 3.190(a) for all pretrial motions. A motion to dismiss under rule 3.190(c)(4) would be a second step, appropriate if the State continued prosecution of a defendant after he earned immunity under section 776.032....
...plied the preponderance of the evidence standard in denying Mr. Horn's petition seeking immunity. We conclude that the trial court's procedures in this case would be appropriate for most, if not all, cases in which the defendant seeks immunity under section 776.032(1)....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2012 WL 4448866, 2012 Fla. App. LEXIS 16036
...cessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony. §
776.013(3), Fla. Stat. (2007). Such a person is immune from criminal prosecution under these circumstances. §
776.032(1), Fla....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 2009 Fla. App. LEXIS 6552, 2009 WL 1490835
...After having denied the petition for writ of certiorari, we now have this case on a Motion for Certification of a Question of Great Public Importance, to wit: In determining a defendant's motion to dismiss on the grounds of immunity *115 from prosecution under § 776.032 Florida Statutes, what is the procedure the trial court must follow, what is the correct allocation of the burden of proof, and what standard of proof must a party meet in order to carry the burden allocated to him or her? The question arises in light of two recent decisions by our sister courts....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 8640, 2010 WL 2382583
...Soler, Assistant Attorney General, *475 Louisville, CO, for appellant/respondent. Hersch & Talisman and Richard Hersch, Coconut Grove, FL, for appellee/petitioner. Before WELLS, ROTHENBERG and LAGOA, JJ. WELLS, Judge. Nadim Yaqubie seeks a writ of prohibition claiming immunity from prosecution under section 776.032 of the Florida Statutes (2008)....
...Petition for Writ of Prohibition (Immunity) On May 19, Yaqubie was arrested and charged with second degree murder. Yaqubie does not deny that he stabbed Camacho to death, but claims that the stabbing occurred while Camacho was assaulting, battering, or robbing him, making him immune from prosecution under section 776.032 of the Florida Statutes. See § 776.032, Fla....
...he court below applied the incorrect standard and should have applied the standard enunciated in Peterson v. State,
983 So.2d 27 (Fla. 1st DCA 2008), to determine whether a preponderance of the evidence shows that he is immune from prosecution under section
776.032. We agree with Yaqubie and therefore grant the instant writ. In Velasquez, the Fourth District Court of Appeal addressed the procedure to be followed in handling section
776.032 motions. Looking to Florida Rule of Criminal Procedure 3.190(c)(4), the court concluded that a motion to dismiss on section
776.032 immunity grounds must be denied when, on no more than a specific denial in a traverse, a material disputed fact issue is made to appear, in effect treating such a claim as an affirmative defense: Rule 3.190(c)(4) of the Florida Rules...
...if the state files a traverse that, with specificity, denies under oath the material fact or facts alleged in the motion to dismiss." Fla. R. Civ. P. 3.190(d). Velasquez,
9 So.3d at 23-24. In Peterson, the First District Court of Appeal decided that section
776.032 is a true immunity provision, not merely an affirmative defense, which requires a trial court to adjudicate disputed fact issues rather than passing them on to a jury as it would an affirmative defense: We now hold that when immunity...
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 6, 2010 WL 21174
...the vehicle was passing him. As a result of Rich's death, Montanez was charged with second-degree murder *801 and shooting at or into a vehicle. [1] Thereafter, Montanez filed his motion for immunity and motion to dismiss. He argued that pursuant to section 776.032, Florida Statutes (2005) (known as the "Stand Your Ground" law), he was entitled to immunity from prosecution for Rich's death....
...See, e.g., McDaniel v. State,
24 So.3d 654, 656-57 (Fla. 2d DCA 2009) (reversing and remanding appellant's conviction in relevant part because trial court utilized wrong standard in determining that appellant was not entitled to immunity). [2] On the other hand, section
776.032(1) addresses immunity from both criminal prosecution and civil suits, [3] and this court has previously held that "[b]ecause of the nature and purpose of a claim of immunity from suit, an appeal after final judgment would not be an ad...
...e-fact." Vermette,
707 So.2d at 744 (citing Stephens v. Geoghegan,
702 So.2d 517, 521 (Fla. 2d DCA 1997)). In his *802 motions, Montanez did not seek protection from civil suit. Nonetheless, a determination that he was not entitled to immunity under section
776.032 could leave him vulnerable to the possibility of defending a civil suit....
...[2] We additionally note that he will still be able to present self-defense as an affirmative defense at trial. See Peterson v. State,
983 So.2d 27, 29 (Fla. 1st DCA 2008) (noting that petitioner could still raise immunity issue as affirmative defense at trial). [3] Section
776.032(1) provides that "[a] person who uses force as permitted in s....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2011 Fla. App. LEXIS 20845, 2011 WL 6936214
...By the time law enforcement could secure the area, there was no sign of any of the firearms. However, law enforcement discovered twenty-six shell casings of four different types in the vicinity. Charged with the second-degree murder of Mr. Barbour, Mr. Gallo filed a motion seeking immunity from prosecution pursuant to section 776.032, Florida Statutes (2009), commonly known as the "Stand Your Ground" law....
...The legislature passed the law that created this section because it determined "that it is proper for law-abiding people to protect themselves, their families, and others from intruders and attackers without fear of prosecution or civil action for acting in defense of themselves and others." Ch. 05-27, at 200, Laws of Fla. Section 776.032 provides that, in certain circumstances, a person may use deadly force to stand his ground against an attacker and be free from the *409 fear of prosecution....
...orth extensive factual findings in a nine-page written order. Based upon the preponderance of the evidence, [2] the trial judge ruled that Mr. Gallo was immune from prosecution because he had used deadly force in the manner statutorily authorized by section 776.032. We find no error in the trial court's procedures, and its factual findings were supported by substantial, competent evidence. The legislature's enactment of section 776.032 placed the burden of weighing the evidence in "Stand Your Ground" cases squarely upon the trial judge's shoulders....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2012 Fla. App. LEXIS 21415, 2012 WL 6166382
...Petitioner, Leon Balfour Joseph, seeks a writ of prohibition to review before trial the denial of his motion to dismiss. Petitioner’s motion claimed immunity from prosecution based on the 2005 Stand Your Ground amendment to the self-defense law. § 776.032, Fla....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 7645, 2015 WL 2393281
...immunity hearing was admissible against him at trial. Cf. Palmore,
510
So. 2d at 1153-54. Appellant was not required to surrender any
constitutional right by voluntarily testifying in the pre-trial Stand Your
Ground immunity hearing.
To be sure, “section
776.032 grants defendants a substantive right to
assert immunity from prosecution and to avoid being subjected to a trial.”
Dennis v....
CopyCited 4 times | Published | District Court, S.D. Florida | 2013 U.S. Dist. LEXIS 126951, 2013 WL 4714049
...nent commission of a forcible felony.” Fla. Stat. §
776.012 (1). “A person who uses force as permitted in s.
776.012 ... is justified in using such force and is immune from criminal prosecution and civil action for the use of such force.” Id. §
776.032(1)....
CopyCited 4 times | Published | Supreme Court of Florida | 41 Fla. L. Weekly Supp. 85, 2016 Fla. LEXIS 502, 2016 WL 916224
...§
776.031 Fla. Stat. (2010) (emphasis supplied). In addition to providing a defense
to criminal charges, chapter 776 also provides immunities from criminal
prosecution and civil actions for conduct justified under sections
776.012,
776.013,
and
776.031. See §
776.032(1), Fla....
CopyCited 4 times | Published | District Court, M.D. Florida
...The Florida Stand Your Ground law, codified in Florida Statutes §§
776.012 and
776.013, substantially altered the law governing justifiable use of force by abrogating the common law duty to retreat before resorting to deadly force in self-defense. At the same time, §
776.032 grants immunity to those who lawfully use force in self-defense, subject to certain exceptions....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2012 WL 5275428, 2012 Fla. App. LEXIS 18680
KHOUZAM, Judge. The State requests certiorari review of an order of the circuit court, sitting in its appellate capacity, which vacated a county court order denying Juan Caamano’s amended motion to dismiss filed pursuant to section 776.032, Florida Statutes (2010)....
...Caamano moved to dismiss the charge, alleging immunity pursuant to section
776.05, Florida Statutes (2010), which provides qualified immunity for a law enforcement officer’s use of force in making an arrest. He later amended his motion to allege instead that he is immune from criminal prosecution pursuant to section
776.032, Florida’s “Stand Your Ground” law....
...0 court denied the amended motion. The county court found that because Caamano is a law enforcement officer and it is undisputed that the alleged crime occurred during the course of an arrest, he is not entitled to invoke the protection described in section 776.032. Caamano then petitioned the circuit court for a writ of prohibition, arguing that because section 776.032 does not expressly exclude law enforcement officers from its protection, Caamano is entitled to invoke the protection of either statute. The circuit court granted Caamano’s petition, finding that “there is nothing in the law that prevents [Caamano] from asserting immunity pursuant to Section 776.032.” The circuit court’s order vacated the county court’s order and directed the county court to conduct an evidentiary hearing pursuant to section 776.032....
...A district court reviewing an order from a circuit court acting in its appellate capacity assesses the departure prong by determining whether the circuit court afforded procedural due process and whether it applied the correct law. Haines City Cmty. Dev. v. Heggs,
658 So.2d 523, 530 (Fla.1995). Section
776.032(1), provides in relevant part: A person who uses force as permitted in [defense of person], [defense of the home], or [defense of others] is justified in using such force and is immune from criminal prosecution and civil action for the use of such force .......
...Here, the State argues that the circuit court, acting in its appellate capacity, departed from the essential requirements of the law by applying the incorrect law. Specifically, the State argues that by ordering the county court to conduct an evi-dentiary hearing under section
776.032, the Stand Your Ground statute, rather than proceeding under section
776.05, the statute specific to law enforcement, the circuit court stripped section
776.05 of meaning....
...776.05. We hold that the specific language of section
776.05, titled “Law enforcement officers; use of force in making an arrest,” must apply to the behavior of law enforcement officers during the course of an arrest, rather than the language of section
776.032, which applies generally to the public at large....
...r proceedings consistent with this opinion. Petition granted; order quashed. DAVIS and MORRIS, JJ„ Concur. . Below Caamano relied upon, and the circuit court found persuasive, language in Dennis v. State,
51 So.3d 456, 457 (Fla.2010), interpreting section
776.032....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2012 Fla. App. LEXIS 1119, 2012 WL 254882
...We agree and grant the petition. Petitioner was appointed to represent an indigent criminal defendant, who had been charged with one count of manslaughter with a firearm. Over nine months later, petitioner filed a motion to dismiss the *106 manslaughter charge pursuant to section 776.032, Florida Statutes, which provided immunity from prosecution if the accused exercised an expanded right to self-defense that eliminated the common law duty to retreat before using deadly force in certain circumstances....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2012 Fla. App. LEXIS 3132, 2012 WL 636305
...so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.” §
776.013(3), Fla. Stat. (2007). Additionally, the person is immune from criminal prosecution under these circumstances. §
776.032(1), Fla....
...reversed only if not supported by competent substantial evidence. Id.; see also Loredo v. State,
836 So.2d 1103, 1104 (Fla. 2d DCA 2003). In this case, the trial court complied with the procedure required for pretrial motions alleging immunity under section
776.032....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2015 Fla. App. LEXIS 2704, 2015 WL 798162
...tioner for battery on a law enforcement officer with a deadly weapon. A petition for writ of prohibition is the proper method to challenge a trial court’s denial of a pre-trial motion to dismiss charges based on a claim of statutory immunity under section 776.032, Florida Statutes....
...The testimony of various witnesses conflicted about what happened next, but there was no question that gunfire was exchanged and Sergeant Johnson was seriously injured. Petitioner was charged with battery on a law enforcement officer with a deadly weapon. He then asserted that he was immune from prosecution under section
776.032, Florida Statutes, because the deadly force he used was justified to defend himself. See §§
776.012,
776.013,
776.031, Fla. Stat. Section
776.032 provides that if a defendant establishes that the force used was justified under any of the applicable statutes, the defendant qualifies for immunity from prosecution....
...rcement officer; 2) acting in the performance of his or her official duties; and 3) identified himself or herself in accordance with any applicable law (or the person using force knew or should have known the person was a law enforcement officer). 1 § 776.032(1), Fla....
...s hands. This Court will not re-weigh the evidence considered by the trial court, nor will we disturb the trial court’s determination of credibility of the witnesses. See Darling *1088 v. State,
81 So.3d 574, 577 (Fla. 3d DCA 2012) (on appeal of s.
776.032 statutory immunity determination, trial court’s findings of fact are presumed correct and will not be reversed if supported by competent substantial evidence); Hair v....
...r, the testimony presented at the hearing uniformly described the deputies’ activities that evening as the investigation of the reported armed robbery of Mr. Wells by a person he knew. Petitioner asserts that “official duties,” for purposes of section 776.032 immunity, are limited to execution of warrants for search or arrest, execution of lawful warrantless arrests, legally detaining or stopping a citizen, and service of process....
...eapon at Petitioner and illegally detaining him, and thus Sergeant Johnson could not have been performing any official duties. Any challenge to the legality of the search and seizure of Petitioner is separate from the determination of immunity under section 776.032, Florida Statutes....
...Even if Sergeant Johnson’s actions were illegal, which we do not find here, Petitioner’s emphasis on the “lawful execution” of legal duties is misplaced. As pointed out in the State’s Response, the phrase “performance of ... official duties” in section 776.032 differs from the phrase “lawful execution of a legal duty,” in statutes defining resisting arrest and other obstruction crimes....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal
...on, or about, June 1, 2012. Kijuan Lamar Byrd died from his injuries. Michael
Smathers survived, but is paralyzed from the waist down. At all relevant times,
Kendle claimed that the shooting was justified under Florida’s Stand Your Ground
Law, section 776.032, Florida Statutes (2011).
At the outset, Kendle was represented by privately retained counsel, Simon
Steckel....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 11737, 2010 WL 3154974
...PER CURIAM. James Patrick Wonder, the defendant in a criminal prosecution pending in Broward County Circuit Court, seeks certiorari review of an order denying his request for an evidentiary hearing on the issue of immunity from prosecution pursuant to section 776.032, Florida Statutes (2009) (the "Stand Your Ground" law, enacted by chapter 2005-27, section 5, at 202, Laws of Florida)....
...1st DCA 2008); Horn v. State,
17 So.3d 836 (Fla. 2d DCA 2009); State v. Yaqubie,
51 So.3d 474 (Fla. 3d DCA 2010); and Gray v. State,
13 So.3d 114, 115 (Fla. 5th DCA 2009). We also certify, as a question of great public importance, the following: *697 WHETHER SECTION
776.032, FLORIDA STATUTES (2009) (THE "STAND YOUR GROUND" LAW), REQUIRES A TRIAL COURT, UPON MOTION TO DISMISS, TO HOLD AN EVIDENTIARY HEARING PRIOR TO TRIAL AND RESOLVE DISPUTED FACTUAL ISSUES TO DETERMINE WHETHER A DEFENDANT HAS ESTABLISHED...
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2014 WL 1696187, 2014 Fla. App. LEXIS 6260
...varez was justified in using force against the plaintiff below, Derrick Roy Flemmings, under Florida’s Stand Your Ground Law, we grant the petition and remand for further proceedings consistent with this opinion. See §
776.012, Fla. Stat. (2014); §
776.032(1), Fla....
...... 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. [[Image here]] §
776.012, Fla. Stat. (2014). Section
776.032 provides that a person who uses such justifiable force receives immunity for the use of that force: (1) A person who uses force as permitted in s.
776.012, s.
776.013, or s.
776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force ... §
776.032(1), Fla....
...Under these statutes, once the criminal circuit court made the legal determination that Alvarez’ use of force against Flemmings was justified, Alvarez was entitled to immunity from criminal prosecution for aggravated battery with a deadly weapon and the criminal charges were dismissed. See §§
776.012,
776.032(1), Fla....
...se of force was justified, making him or her immune from criminal prosecution, is determinative on this issue in a civil action brought by a non-party to the criminal proceeding, and involving the same nucleus of facts and the same use of force. See §
776.032, Fla. Stat. (2014). And while such a reading might be implied from some language in subsections (1) and (3) of
776.032, 2 given the well-established jurisprudence that statutes should be construed strictly and in a manner such that “no change in the common law can be said to be legislatively intended unless the statute speaks plainly in such regard or cannot *530 otherwise be given effect,” we decline to infer such an intent. Fullerton v. Fla. Med. Ass’n, Inc.,
938 So.2d 587, 592 (Fla. 1st DCA 2006). An evidentiary hearing is required In State v. Yaqubie,
51 So.3d 474, 476 (Fla. 3d DCA 2010), this court confirmed that “section
776.032 is a true immunity provision, not merely an affirmative defense, which requires a trial court to adjudicate disputed fact issues rather than passing them on to a jury as it would an affirmative defense.” Thus, determining such an immunity claim on a motion for summary judgment is not appropriate....
...be filed within a certain time period of the order to be reviewed. We may therefore review both the trial court's first order and its second order denying [the] motion to dismiss ...." Gordon v. Regier,
839 So.2d 715 , 717 n. 2 (Fla. 2d DCA 2003). . Section
776.032(3) provides for an award of attorney’s fees, costs, compensation for loss of income and expenses incurred in defending a civil action that stems from the use of justifiable force: (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). §
776.032(3), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2009 Fla. App. LEXIS 14919, 2009 WL 2516939
...Matthewman of Seiden, Alder, Matthewman & Bloch, P.A., Coral Springs, for petitioner. No appearance required for respondent. PER CURIAM. Harold Govoni petitions for a writ of prohibition from a denial of a motion to dismiss asserting statutory immunity under section 776.032, Florida Statutes (2008)....
...Govoni says he held his "unloaded gun in his hand" to protect himself from "dope *810 smoking trespassers." Relying on the statements of the victims, the state's version casts Govoni in a different light. Govoni filed a rule 3.190(c)(4) motion to dismiss based on section 776.032....
...The circuit judge noted that Govoni's motion was not sworn to as required by Rule 3.190(c). Also, the judge observed that he was bound by our decision in Velasquez v. State,
9 So.3d 22, 24 (Fla. 4th DCA 2009), which held that "[w]hen rule 3.190(c)(4) is used as the vehicle to raise the immunity issue under section
776.032, that rule provides the procedural framework by which the court makes its determination." Therefore, the court was required to deny the motion, because the state's traverse placed essential material facts in dispute....
...In 2005, the Florida Legislature passed a statute granting immunity under certain conditions of self-defense. The law reads, "[a] person who uses force as permitted in s.
776.012, s.
776.013, or s.
776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force." §
776.032, Fla....
...Where it applies, this type of immunity means that a defendant has a right not to stand trial. A motion to dismiss under rule 3.190(c)(4) is not well-suited to resolve a claim of "true immunity" from prosecution. In most cases, where a prosecutor has elected to file charges, there will be a factual dispute about whether section 776.032 immunity applies....
...tment or information, whether the same shall relate to matters of form, substance, former acquittal, former jeopardy, or any other defense. (Emphasis added). The rule uses the terms "defenses" and "defense" broadly, so that it encompasses a claim to section 776.032 immunity....
...correct in Velasquez when we said that Peterson created "a process sanctioned neither by statute nor existing rule." Velasquez,
9 So.3d at 24. Peterson rejected the proposition that rule 3.190(c)(4) should exclusively control the determination of a section
776.032 immunity claim....
..., so that it can "determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches." Id. Peterson 's procedure for a contested evidentiary hearing fits within the framework of rule 3.190. Holding a hearing on a section 776.032 immunity claim is not a oddity in the criminal law....
...The existing rule can thus embrace the procedure established by the first district in Peterson. Finally, I agree with Peterson 's requirement that a defendant establish entitlement to statutory immunity by the preponderance of the evidence at a motion to dismiss hearing on a section 776.032 immunity claim....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal
...ing the defendant's theory is legally valid.
Williams v. State,
34 So. 3d 768, 770-71 (Fla. 2d DCA 2010) (quoting Worley v. State,
848 So. 2d 491, 492 (Fla. 5th DCA 2003)).
Under the 2012 version of Florida's Stand Your Ground Law,2 section
776.032(1) provides for immunity from criminal prosecution for any person who uses
force as permitted in section
776.012, section
776.013, or section
776.031....
...on
776.012 in effect in 2012 did not. See Little
v. State,
111 So. 3d 214, 221-22 (Fla. 2d DCA 2013).
At the time of Eady's charged criminal conduct in 2012, section
776.012(1)
read, in relevant part, as follows:
2§§
776.032, .012, .013, Fla....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2013 WL 5849486, 2013 Fla. App. LEXIS 17324
...As a result of this incident, the Defendant was charged with one count of aggravated assault with a firearm in violation of sections
784.021(l)(a) and
775.087(2), Florida Statutes (2011). On April 3, 2012, the Defendant filed a motion to dismiss, alleging immunity from prosecution, pursuant to section
776.032, Florida Statutes (2011)....
...s properly denied when there are disputed issues of material fact. Significantly, the Dennis court expressly approved the procedure set forth in Peterson v. State,
983 So.2d 27 (Fla. 1st DCA 2008), for ruling on motions to dismiss, filed pursuant to section
776.032....
CopyCited 2 times | Published | Supreme Court of Florida | 36 Fla. L. Weekly Supp. 220, 2011 Fla. LEXIS 1246, 2011 WL 2061994
...4th DCA 2010), in which the Fourth District Court of Appeal denied Wonder's petition for a writ of certiorari. The Fourth District concluded that the trial court did not depart from the essential requirements of law in denying Wonder's request for an evidentiary hearing on the issue of immunity from prosecution pursuant to section 776.032, Florida Statutes (2009), Florida's "Stand Your Ground" law....
...The Fourth District granted Wonder's motion to stay pending this Court's review of Dennis v. State,
17 So.3d 305 (Fla. 4th DCA 2009). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We have since resolved the conflict, concluding that where a criminal defendant files a motion to dismiss on the basis of section
776.032, the trial court should decide the factual question of the applicability of the statutory immunity....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal
...Before FERNANDEZ, LOGUE and SCALES, JJ.
FERNANDEZ, J.
Petitioner Tashara Love seeks a writ of prohibition directing the trial court to
discharge her from prosecution on the ground of statutory immunity pursuant to
Florida’s Stand Your Ground Law, section 776.032, Florida Statutes (2017)....
...At the end of the altercation, Love shot the victim, Thomas
Lane, as he was about to hit her daughter. Love does not dispute these facts.
Thereafter, the State charged Love with one count of attempted second
degree murder with a firearm. Love invoked Florida’s Stand Your Ground law,
section
776.032, Florida Statute (2017), asserting she was immune from
prosecution because she committed the crime while defending her daughter.
Before the date on which Love’s immunity hearing was held, the Florida
Legislature amended section
776.032. However, before that amendment, the
Florida Supreme Court had held in Bretherick v. State,
170 So. 3d 766 (Fla. 2015),
that section
776.032(1) granted a person immunity from prosecution if the person
was able to prove at a pretrial hearing, by a preponderance of the evidence, that the
use of force was justified as outlined in the statute....
...ear and
convincing evidence is on the party seeking to overcome the
immunity from criminal prosecution provided in subsection (1).
It became effective on June 9, 2017.
At Love’s immunity hearing, the State’s position was that section
776.032(4) did not apply retroactively. In the alternative, the State further argued
that section 776.032(4) was unconstitutional. In its written order, the trial court
rejected the State’s retroactivity argument but agreed with the State that section
776.032(4) was unconstitutional because it violated the separation of powers....
...Love now
petitions this Court.1
1A petition for writ of prohibition is the proper method to review a trial court’s
denial of Stand Your Ground immunity. Mobley v. State,
132 So. 3d 1160, 1161
3
First, we hold that the amendment to section
776.032 was constitutional.
Article V, section 2(a) of the Florida Constitution states:
The supreme court shall adopt rules for the practice and procedure in
all courts including the time for seeking appellate review, the...
...Tuttle Design-Build, Inc.,
753 So. 2d 49, 54 (Fla. 2000)
(the Florida Supreme Court has “consistently rejected constitutional challenges
where the procedural provisions were intertwined with substantive rights.”).
Subsection (1) of
776.032 gives “defendants a substantive right to assert immunity
from prosecution and to avoid being subjected to trial.” See Bretherick,
170 So. 3d
at 772 (Fla. 2015) (quoting Dennis v. State,
51 So. 3d 456, 462 (Fla. 2010)).
Subsection (4) of
776.032 then establishes the burden of proof to be applied at the
pretrial immunity hearing where the person’s substantive right to Stand Your
(Fla....
...the trial court. The amendment shifts the
burden of proof to the prosecution after the defendant has made a prima facie claim
of justified use of force, and it requires that the State meet this burden of proof
with clear and convincing evidence. § 776.032(4), Fla. Stat. (2017). This is
consistent with the well-established legislative practice of passing statutes
allocating the burden of proof in judicial proceedings. In addition, section
776.032(4) does not conflict with any rule of procedure promulgated by the Florida
Supreme Court because no such rule was added to the Florida Rules of Criminal
procedure regarding section 776.032 before subsection (4), nor was there a rule of
procedure set forth by the Legislature before January 2017.2 The Legislature, thus,
had the constitutional authority to enact the burden of proof provision of section
776.032(4) in order to give effect to the substantive right to immunity in the Stand
Your Ground statute.3
2With respect to the burden of proof in pretrial Stand Your Ground hearings, the
Florida Supreme Court held in Bretherick, supra, th...
...Legislature had left this procedural gap.
3 We are cognizant of the recent opinion out of the Second District Court of
Appeal, Tymothy Ray Martin v. State, No. 2D16-4468, 43 Fla. L. Weekly D1016c
(Fla. 2d DCA May 4, 2018), where the Second District decided that section
776.032(4) is a procedural amendment that should be applied retroactively to all
pending cases....
...2007), mandates a finding
5
Second, we hold that the statute did not apply to Love’s case because the
crime she committed occurred before the amendment’s effective date, and the
statute has no retroactive application. Section 776.032(4) was effective June 9,
2017, and Love shot Thomas on November 26, 2015....
...force with force, including deadly force if he reasonable [sic] believes
it is necessary to do so to prevent death or great bodily harm to
himself or to prevent the commission of a forcible felony.
that the subsection (4) amendment to section 776.032 is a substantive change in the
law. We further disagree with the Second District Court of Appeal in Martin
because we believe that Smiley’s holding that Article X, section 9 of the Florida
Constitution prohibits retroactive application of criminal legislation is applicable to
section 776.032(4)....
... purpose by creating substantive new rights or imposing new legal burdens’ is
treated as a substantive change in the law.” Smiley at 334 (citing to Arrow Air,
Inc.,
645 So. 2d 422, 424 (Fla. 1994)) (emphasis added). Here, the subsection (4)
amendment to section
776.032 imposed a new legal burden on the State, requiring
the State to prove by clear and convincing evidence that the defendant was not
justified in using or threatening to use force as permitted in sections
776.012,
776.013, or
776.031, Florida Statutes....
...defining crime,
treating of its nature, or providing for its punishment ... [or] deal[ing]
in any way with crime or its punishment.” Id.,
109 So. at 591.
Smiley,
966 So. 2d at 337.
8
In the case before us, section
776.032(4) qualifies as a criminal statute
because it affects whether the State can prosecute a defendant in the same manner
as before subsection (4) was added....
...If the amended statute were to apply to Love,
she could not be prosecuted in the same manner as before because the burden of
proof at the immunity hearing would now shift to the State and the burden would
rise to clear and convincing evidence. Thus, article X, section 9 of the Florida
Constitution does not allow section
776.032 to be applied retroactively. Smiley,
966 So. 2d at 337 (“[The defense] has a direct impact on the prosecution of the
offense…”).
In sum, although section
776.032(4), Florida Statutes (2017), is
constitutional, under the authority of Smiley, Love is not entitled to the benefit of
the shift in the burden of proof because the amendment to the statute by the
Legislature in June 2017 operated prospectively and, thus, is inapplicable to Love’s
case....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2014 Fla. App. LEXIS 4610, 2014 WL 1255319
SAWAYA, J. The issue we must resolve is whether the Legislature intended section
944.35(l)(a), Florida Statutes (2011), to preclude a correctional officer from asserting the “stand your ground” defense provided in section
776.032, Florida Statutes (2011)....
...The correctional officer in this case, Brad Heilman, presents this issue in a Petition for Writ of Prohibition he filed with this court. In that Petition, he requests this court issue a writ directing the trial court to hold an evidentiary hearing pursuant to section 776.032....
...n
944.35(l)(a), which lists specified circumstances in which a correctional officer is authorized to use force against an inmate, provides the defense for Heilman and precludes him from asserting the immunity and justification defense provided under section
776.032....
...stitution in Lake County, Florida. While on duty, Heilman and an inmate became involved in a physical altercation that resulted in physical injury to the inmate. Heilman was subsequently charged with aggravated battery. He filed a motion pursuant to section 776.032 to dismiss the Information charging him with that offense and requested a hearing....
...Caamano,
105 So.3d 18 (Fla. 2d DCA 2012). Specifically, the court held that “[ajpplying the court’s reasoning in Caamano ... to the instant case, the specific language of section
944.35(l)(a), Florida Statutes, governs the Defendant’s use of force rather than section
776.032, Florida Statutes.” We believe that the trial court’s reliance on Caamano is misplaced because that case is clearly distinguishable from the instant case. The defendant in Caamano was a police officer charged with attempted battery allegedly committed while the officer was attempting to arrest the victim. When the officer asserted a defense under *515 section
776.032, the court held that another, more specific, statute found in chapter 776 provided a defense for law enforcement officers. That statute is section
776.05, and it provides that the officer “is justified in the use of any force” under specified circumstances. §
776.05, Fla. Stat. (2011). Specifically, the court stated that “[bjecause sections
776.05 and
776.032 address the use of justifiable force in the context of a criminal prosecution, the doctrine of in pari materia requires that we read them together and harmonize them.” Caamano, ....
...The court reasoned that section
776.05 is specifically applicable to cases involving the use of force by law enforcement officers in making an arrest and, therefore, section
776.05 supplied the justification defense applicable to the police officer rather than the more general statute found in section
776.032. Otherwise, the court believed that the two statutes would be in conflict and that section
776.032 would render the other meaningless....
...secution. The court in Caamano considered two statutes in the same chapter of the Florida Statutes that contain the same terminology, while the two statutes we consider are found in different chapters and contain different terminology. Specifically, section 776.032 is found in chapter 776 of the Florida Statutes, entitled “Justifiable Use of Force,” and the clear purpose of the statutes in that chapter is to provide defenses to individuals accused of crimes committed against the person of another. Section 776.032 is entitled “Immunity from criminal prosecution and civil action for justifiable use of force,” 3 and the provisions of the statute speak in terms of “justified” and “justifiable” (meaning “to declare free of blame: to absolve”) 4 to denote a defense to such crimes. For example, section 776.032(1) provides that a person is “justified in using such force and is immune from criminal prosecution,” and the term “justified” is used by the Legislature in a manner to clearly mean and reference a defense to, and immunity from, criminal prosecution. The immunity from criminal prosecution extends to “arresting, detaining in custody, and charging or prosecuting the defendant.” § 776.032(1), Fla....
...Section
944.35 is found in chapter 944, “The Florida Corrections Code of 1957,” 5 and the stated purpose of the statutes in chapter 944 is to make the correctional system in Florida more efficient and effective and to reduce recidivism. See §
944.012, Fla. Stat. (2011). While section
776.032 specifically provides a justification defense that immunizes an individual from criminal prosecution, no similar provision is found in section
944.35(l)(a)....
...mployees of the Department of Corrections who use unauthorized physical force on inmates, section
944.35(3)(a) and (b). We, therefore, reject the implicit rationale adopted by the trial court that under the holding of Caamano , section
944.35(1) and section
776.032 are analogous to the point where the former precludes application of the latter to correctional officers. We also note that section
944.35 was enacted long before section
776.032, and we hardly think that the Legislature intended that statute preclude application of a statute that had not yet been enacted....
...eves to be lawfully detained in such institution under sentence for an offense or awaiting trial or commitment for an offense.” Under the Caamano rationale, this statute would appear to preclude application of the justification defense provided in section 776.032....
...onably believes that person is lawfully detained in such institution!!]” §
944.35(l)(a)2., Fla. Stat. (2011). If we apply the Caamano rationale, it would appear that section
776.07(2) is a more specific statute intended to preclude application of section
776.032 in cases involving force used by correctional officers to prevent an escape. But if, under the Caama-no rationale, section
944.35(1) preempts section
776.032, there would be no reason for the Legislature to enact section
776.07(2) in the first instance....
...7 *517 The primary focus of our analysis has been to discern legislative intent — the proverbial polestar that guides statutory construction, see Bautista v. State,
863 So.2d 1180 (Fla.2003) — and the conclusions we reach are that the Legislature did not intend that section
944.35(1) preempt section
776.032 and that the Legislature did intend that section
776.032 apply to correctional officers with the exception provided in section
776.07(2). Because Heilman is entitled to assert the defense provided under section
776.032, we grant the Petition, issue the writ, and remand this case for further proceedings consistent with this opinion....
...Petition Granted; Writ Issued; Remanded. PALMER and BERGER, JJ., concur. . This court and others have held that a petition for writ of prohibition is the appropriate procedure for obtaining a pre-trial review of a trial court’s order denying a motion to dismiss under section 776.032....
CopyCited 2 times | Published | Florida 4th District Court of Appeal
...nd killed Crestony Colin in
February 2014, in rural Palm Beach County, and on the next day, he
disposed of the body by placing it in Colin’s rental car and setting the car
on fire in rural Broward County. Morales filed a motion to dismiss based
on section
776.032, Florida Statutes, the “Stand Your Ground Law.”
Section
776.032(1), Florida Statutes (2014), provides:
A person who uses or threatens to use force as permitted in s.
776.012, s....
...A jury could infer from the
evidence the improbability of Morales’s credibility and his claim of self-
defense. For these reasons, the trial court correctly denied the motion for
judgment of acquittal.
Similarly, the trial court did not err in denying the motion to dismiss
pursuant to sections 776.032 and 776.12, Florida Statutes (2014), the
“Stand Your Ground Law”....
CopyCited 2 times | Published | Supreme Court of Florida | 40 Fla. L. Weekly Supp. 411, 2015 WL 4112414, 2015 Fla. LEXIS 1470
...vs.
STATE OF FLORIDA,
Respondent.
[July 9, 2015]
PARIENTE, J.
The issue in this case arises from Florida’s “Stand Your Ground” law,
section 776.032, Florida Statutes (2011), which provides for immunity from
prosecution when a defendant has used force in accordance with certain specified
statutory circumstances....
...Specifically, we address the burden of proof in a pretrial
evidentiary hearing where the defendant has filed a motion to dismiss, claiming
this statutory immunity from prosecution.1
1. Since the time of the underlying events in this case, the Florida
Legislature has amended section 776.032....
...784.021(1)(a), Florida Statutes
(2011), for his conduct during an encounter with another driver on a highway in
2011. Bretherick filed a motion to dismiss under Florida Rule of Criminal
Procedure 3.190(b), claiming immunity from prosecution under section 776.032,
Florida Statutes, Florida’s “Stand Your Ground” law....
...of the evidence at a pretrial evidentiary hearing—the procedure that has been
-8-
followed by all of the district courts of appeal after Dennis—is both appropriate
and consistent with the statutory scheme.
I. Section 776.032 & This Court’s Decision in Dennis
Florida’s Stand Your Ground law provides in pertinent part as follows:
Immunity from criminal prosecution and civil action for
justifiable use of force.—
(1) A person who uses force as permitted in s....
...rd procedures for
investigating the use of force as described in subsection (1), but the
agency may not arrest the person for using force unless it determines
that there is probable cause that the force that was used was unlawful.
§ 776.032, Fla....
...Further, statutory enactments “are to be interpreted so as to accomplish
rather than defeat their purpose.” Reeves v. State,
957 So. 2d 625, 629 (Fla. 2007)
(quoting Lewis v. Mosley,
204 So. 2d 197, 201 (Fla. 1967)).
In order to effectuate legislative intent, we held in Dennis that “the plain
language of section
776.032 grants defendants a substantive right to assert
immunity from prosecution and to avoid being subjected to a trial.” 51 So....
...that would render part of a statute meaningless.’ ” Martinez v. State,
981 So. 2d 449, 452 (Fla. 2008) (quoting State v. Bodden,
877 So. 2d
680, 686 (Fla. 2004)). Accordingly, the grant of immunity from
“criminal prosecution” in section
776.032 must be interpreted in a
manner that provides the defendant with more protection from
prosecution for a justified use of force than the probable cause
determination previously provided to the defendant by rule.
Id....
...immunity, this Court determined that “Florida Rule of Criminal Procedure
3.190(b)—rather than rule 3.190(c)(4)—provides the appropriate procedural
- 12 -
vehicle for the consideration of a claim of section 776.032 immunity.” Id....
...aring during which the
trial court would determine whether the defendant is entitled to statutory immunity.
Id. at 463. We stated as follows:
We conclude that where a criminal defendant files a motion to
dismiss on the basis of section 776.032, the trial court should decide
the factual question of the applicability of the statutory immunity.
Accordingly, we disapprove the Fourth District’s reasoning in Dennis
and approve the reasoning of Peterson on that issue.
Id....
...First, in providing for the Stand Your Ground immunity, the Legislature did
not confer upon every person in Florida blanket immunity from criminal
prosecution, but instead provided immunity only to those whose use of force was
justified, as specified by statute. See § 776.032, Fla....
...A motion to dismiss under rule 3.190(c)(4) is not well-suited to
resolve a claim of “true immunity” from prosecution. In most cases,
where a prosecutor has elected to file charges, there will be a factual
dispute about whether section 776.032 immunity applies....
...Rule 3.190 allows for contested hearings on motions to dismiss.
The rule does not limit the grounds upon which a motion to dismiss
may be filed. . . . The rule uses the terms “defenses” and “defense”
broadly, so that it encompasses a claim to section 776.032 immunity.
The four grounds specified in rule 3.190(c)(1)-(4)—that the defendant
has been pardoned, previously been placed in jeopardy, previously
been granted immunity, or that the undisputed facts do not establish...
...the
defendant has shown by a preponderance of the evidence that the
immunity attaches.” Id. Peterson’s procedure for a contested
evidentiary hearing fits within the framework of rule 3.190.
Holding a hearing on a section 776.032 immunity claim is not a
oddity in the criminal law....
...is
case the defendant failed to successfully demonstrate by a preponderance of the
evidence that he was the victim of a forcible felony or that his use of force was
justified.
- 25 -
dismiss on the basis of section 776.032, the trial court should decide the factual
question of the applicability of the statutory immunity.” We reached this
conclusion because “the plain language of section 776.032 grants defendants a
substantive right to assert immunity from prosecution and to avoid being subjected
to a trial.” Id....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal
...Rodriguez’s argument that a trial court ruling has erroneously denied Rodriguez
the benefit of the recent legislative amendment.2 Because we conclude that the
trial court has not acted or attempted to act outside its jurisdiction in issuing the
1 Section 776.032, Florida Statutes (2015), as used in this opinion, and for clarity,
the “Crime Date SYG Law”; and section 776.032, Florida Statutes (2017), the
“2017 SYG Law”.
2 The amendment embodied in the 2017 SYG Law was enacted by Chapter 2017-
72, § 1, Laws of Florida....
...Rodriguez’s petition for lack of jurisdiction.
Factual and Procedural History
Rodriguez was indicted for first-degree murder and aggravated assault with
a firearm. The date of the alleged crime was June 20, 2015. The effective date of
the amendment creating subsection 776.032(4) of the 2017 SYG Law was June 9,
2017....
...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 [section 776.032(1)].
Before the amendment, the Florida Supreme Court interpreted the self-
defense and SYG statute (including the use of deadly force provisions) to establish
procedures for pretrial immunity hearings....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 1554, 2015 WL 477872
...After pleading no contest to aggravated battery with a firearm (reduced from second-degree murder) and attempted manslaughter (reduced from attempted second-degree murder), Corey Miles appeals the denial of his dispositive motion to dismiss, which asserted “Stand Your Ground” immunity under section
776.032, Florida Statutes (2010). Section
776.032 provides immunity from prosecution under three separate statutory defenses-sections
776.012,
776.013, and
776.031....
...-degree murder with a firearm, carrying a concealed weapon, and possession of a firearm by a convicted felon for an incident that occurred in October 2010.- Miles filed a motion to dismiss all four counts of the information, asserting immunity under section 776.032, Florida Statutes....
...2d DCA 2013) (reversing denial of motion to dismiss based on section
776.012 immunity, regardless of alleged unlawful activity). The First District has also stated as much in obiter dictum. Brown v. State,
135 So.3d 1160, 1161-62 (Fla. 1st DCA 2014) (noting that statutory immunity under section
776.032(1), based on sections
776.012, “is potentially available even to a person engaged in an unlawful activity at the time”); see also State v....
...d in an unlawful act at *172 the time. Accordingly, we reverse and remand for discharge on the counts subject to immunity — second-degree murder (reduced to manslaughter) and attempted second-degree murder (reduced to aggravated battery). However, section 776.032 immunity does not apply to the remaining charged counts of carrying a concealed weapon and possession of a firearm by a convicted felon....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2015 Fla. App. LEXIS 18386, 2015 WL 8344935
...following the denial of his motion to dismiss the information charging him with
second degree murder with a firearm, aggravated assault with a firearm, possession
of a firearm by a convicted felon, and tampering with a witness,1 pursuant to
sections
776.012 and
776.032 of the Florida Statutes, commonly referred to as the
Stand Your Ground immunity statutes....
...establish by a preponderance of the evidence that he is entitled to self-defense
immunity.
The defendant does not dispute that he shot and killed the victim, Anthony
White. However, he claims that he is immune from criminal prosecution under
section 776.032 because he reasonably believed the force he used was necessary to
prevent the imminent commission of a forcible felony (murder) against him by Mr.
White....
...He, therefore, filed a motion to dismiss the charges based on the Stand
Your Ground Law, and the trial court properly conducted an evidentiary hearing.
See Dennis v. State,
51 So. 3d 456, 462-63 (Fla. 2010) (explaining that the
appropriate procedural vehicle to raise immunity under section
776.032 is a pretrial
motion to dismiss under rule 3.190(b), Florida Rules of Criminal Procedure, and
1Although the defendant filed his Stand Your Ground immunity motion on all four
counts, it is clear that such immunity would not apply to...
...ent to kill.
The Trial Court’s Ruling
The trial court concluded that the defendant failed to demonstrate by a
preponderance of the evidence that he was entitled to statutory immunity under
sections
776.012 and
776.032....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...Appellant challenges the judgment and sentence entered
after her no contest plea with reservation of her right to appeal
the trial court’s denial of her motion to dismiss. Appellant’s
motion to dismiss was based on the statutory immunity from
prosecution provided by section
776.032, Florida Statutes (2017),
where the use of force is justified pursuant to section
776.012,
Florida Statutes.
At the motion hearing, the State conceded that Appellant’s
motion established a prima facie case that Appellant’s use of
force was justified and that the burden of proof was thus on the
State to overcome that prima facie case with clear and convincing
evidence to the contrary. 1 §
776.032(4), Fla....
...3
The trial court applied the correct standard, weighed the
conflicting evidence, and determined the credibility of the
witnesses in reaching its decision. As described in N.L. v.
Department of Children and Family Services,
843 So. 2d 996, 999
(Fla. 1st DCA 2003):
1 The question of whether the amendment to section
776.032(4), Florida Statutes (2017), resulting from chapter 2017-
72, Laws of Florida, which shifts the burden of proof to the State,
is only prospective or is retroactive is currently before the Florida
Supreme Court....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2016 Fla. App. LEXIS 17021
...The defendant drew his firearm, closed his eyes, and fired several times, killing his attacker. The defendant was charged with second-degree murder with a firearm. The defendant in Little filed a motion to dismiss arguing that he was entitled to immunity under the Stand Your Ground law as provided for in sections
776.032 and
776.012(1). Section
776.032(1) provides that persons using force as permitted under sections
776.012,
776.013, or
776.031 are “justified in using such force and [are] immune from criminal prosecution and civil action for the use of such force.” The State res...
...y, and shooting into a vehicle; vacate his sentences; and remand for a new trial. Petition granted. SLEET, J., Concurs. CRENSHAW, J., Dissents with opinion. . The trial court’s oral instructions deviated slightly from the written instructions. . §§ 776.032, .012, .013, Fla....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal
...Dominguez, Assistant
Attorney General, for respondent.
Before EMAS, C.J., and FERNANDEZ, and LINDSEY, JJ.
PER CURIAM.
Petitioner, Randon Link, seeks a writ of mandamus compelling the trial court
to hold a hearing on his claim of stand-your-ground immunity pursuant to section
776.032(1), Florida Statutes (2018)....
...* * *
THE COURT: I am not going to set a hearing.
Petitioner has an absolute right to a pretrial evidentiary hearing to determine
whether he is entitled to immunity from criminal prosecution pursuant to section
776.032(1)....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2014 WL 1921734, 2014 Fla. App. LEXIS 7171
...n’s argument. First, the Second District, in Little v. State,
111 So.3d 214 (Fla. 2d DCA 2013), considered whether a person may claim justifiable use of deadly force under section
776.012(1), and therefore, immunity from criminal prosecution under section
776.032(1), 1 even though he or she was engaged in unlawful activity at the time....
...at the threat was imminent was unreasonable, whether or not he was engaged in unlawful activity. For these reasons, we conclude no fundamental error occurred, and, we AFFIRM Hardison’s conviction and sentence. ROBERTS and WETHERELL, JJ„ concur. .776.032 Immunity from criminal prosecution and civil action for justifiable use of force.— (1) A person who uses force as permitted in s....
...rce 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. [[Image here]] § 776.032(1), Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...im not
to pursue a Stand Your Ground defense under section
776.012,
Florida Statutes (2012); failing to move to sever the possession of
a firearm by a convicted felon charge; and failing to file a pretrial
motion for Stand Your Ground Immunity under section
776.032,
Florida Statutes (2012)....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2012 Fla. App. LEXIS 10033, 2012 WL 2345116
WETHERELL, J. Alan Rice appeals his conviction and sentence for aggravated battery, arguing that the trial court erred in denying his request for immunity under section 776.032, Florida Statutes (2008), which is commonly referred to as the Stand Your Ground law....
CopyCited 1 times | Published | Supreme Court of Florida | 36 Fla. L. Weekly Supp. 365, 2011 Fla. LEXIS 1569, 2011 WL 2637425
CANADY, C.J. We have for review Govoni v. State,
17 So.3d 809 (Fla. 4th DCA 2009), in which the Fourth District Court of Appeal determined that the trial court did not err in denying Govoni’s motion to dismiss filed pursuant to section
776.032(1), Florida Statutes (2008), Florida’s “Stand Your Ground” law....
...We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We stayed proceedings in this case pending disposition of Dennis v. State,
51 So.3d 456 (Fla.2010), in which we determined that where a criminal defendant files a motion to dismiss on the basis of section
776.032, the trial court should decide the factual question of the applicability of the statutory immunity....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2012 WL 3020379, 2012 Fla. App. LEXIS 11939
...Mocio was charged with misdemeanor domestic battery in county court for slamming a window shut on his estranged wife’s hands as she tried to gain access to his room. He filed a motion to dismiss in which he asserted he was entitled to immunity under section 776.032, Florida Statutes (2010), the Stand Your Ground law....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2014 WL 3434445, 2014 Fla. App. LEXIS 10884
...§
776.013(3), Fla. Stat. (2009) (emphasis added). The parameters for
permissible use of force in this section are very similar to those in section
776.012(1), and both do away with the duty to retreat altogether in similar,
if not identical, circumstances.
Section
776.032, perhaps the heart of the Stand Your Ground
amendments, provides immunity from criminal prosecution and civil
action when the use of force is permissible under section
776.012 (defense
of person), section
776.013 (home protection or w...
...ding
in a place they have the right to be), and section
776.031 (defense of
others). In granting the original motion to dismiss, the trial court
erroneously concluded that Hill was entitled to the presumption of section
776.013(1) and immunity under section
776.032, despite the fact that he
was a felon in possession of an illegal firearm which was used in response
to his attack....
...prosecution derived from section
776.013(3). Accord Little v. State,
111
So. 3d 214, 221 (Fla. 2d DCA 2013) (holding that a person engaged in an
unlawful activity, such as possession of an illegal firearm by a felon, would
not be entitled to claim immunity under section
776.032(1) based on the
use of force as permitted in section
776.013(3)).
On the other hand, Hill’s present motion for immunity travels under
section
776.012(1) (use of force in defense of person), which contains no
language precluding the justifiable use of deadly force where the person
claiming self-defense is engaged in an unlawful activity. And, section
776.032(1) expressly extends immunity from prosecution to those who use
5
defensive force as permitted by section
776.012....
...ch
must be analyzed individually. In State v. Wonder,
128 So. 3d 867, 870
(Fla. 4th DCA 2013), this court has already expressed agreement with the
Second District’s extensive legal analysis in Little v. State, concluding that
the plain language of
776.032 can be understood as granting immunity to
a person who qualifies under either
776.012(1) or
776.013(3) and that the
“unlawful activity” exception does not exist under section
776.012(1).
Thus, we recede from our statement in Hill that a f...
...We are not at liberty, however, to rewrite
the statute.
2 The Second District certified conflict with Hill “[t]o the extent that the . . .
decision . . . can be read as holding that a defendant who is engaged in an
unlawful activity is not entitled to immunity under section 776.032(1).” Little,
111 So....
...to
seek immunity from prosecution under section
776.012 is limited to those
not engaged in unlawful activity. Had this been the actual intent, then the
legislature could have easily accomplished this by including a simple
statement to this effect in section
776.032 or in section
776.012....
...da
Statutes section
776.012. See Little; Wonder.
Conclusion
In summary, Hill is not precluded from claiming justifiable use of force
under section
776.012(1), or from seeking immunity from prosecution
pursuant to section
776.032....
...and remand for further proceedings
consistent with this opinion. On remand, the trial court shall determine
whether Hill was justified in using deadly force under section
776.012(1),
and, therefore, entitled to immunity from prosecution pursuant to section
776.032.
Petition granted.
DAMOORGIAN, C.J., WARNER, GROSS, TAYLOR, MAY, CIKLIN, GERBER, LEVINE,
CONNER, FORST and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of tim...
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2013 WL 238168, 2013 Fla. App. LEXIS 931
PER CURIAM. Petitioner Wayne Tover seeks either a writ of certiorari or prohibition to review the trial court’s denial of his pretrial motion to dismiss based on immunity from prosecution under section 776.032, Florida Statutes (2012), the “Stand Your Ground” law....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2007 WL 4270594
...The State seeks review of the trial court's order granting David Heckman's motion to dismiss the information that charged Heckman with aggravated battery. The State argues that the trial court erred in determining that Heckman's actions were immune from prosecution under sections
776.013 and
776.032, Florida Statutes (2005)....
...Heckman then fired his revolver twice, hitting Carroll once in the thigh. The State filed an information charging Heckman with one count of aggravated battery. Heckman filed a motion to dismiss, alleging that his actions were immune from prosecution under sections
776.013 and
776.032(1)....
...This court conducts a de novo review of an order granting the defendant's motion to dismiss a criminal information. State v. Perez,
952 So.2d 611, 612 (Fla. 2d DCA 2007). The trial court granted Heckman's motion to dismiss based on its finding that Heckman was immune from criminal prosecution under sections
776.013 and
776.032(1). Section
776.032(1) provides immunity from criminal prosecution for the use of force permitted under section
776.013....
...t Carroll when Carroll was walking away from Heckman's garage toward his truck. Heckman argues that immunity applies because Carroll had threatened to break his jaw, then unlawfully entered Heckman's garage and vandalized Heckman's vehicle. Sections
776.032 and
776.013 were created by chapter 2005-27, section 1, Laws of Florida....
...The creation of section
776.013 eliminated the burden of proving that the defender had a reasonable belief that deadly force was necessary by providing a conclusive presumption of such. Fla. S. Comm. on Judiciary, CS for SB 436 (2005) Staff Analysis 5-6 (Feb. 25, 2005) (on file with comm.). The creation of section
776.032 provided, for the first time, for immunity from criminal prosecution for persons who act in self-defense under section
776.013....
...or in the process of entering. Carroll was retreating from the garage to his vehicle, which he had almost reached. Thus, the facts before the court at the hearing on the motion to dismiss did not establish that Heckman was entitled to immunity under section
776.032 for the use of force permitted under section
776.013....
CopyCited 1 times | Published | District Court, M.D. Florida
...With these errors corrected, the case is now back with instruction to re-examine the sufficiency of Plaintiff's Complaint applying the "actual probable cause" standard in light of Florida's "Stand Your Ground" law, Florida Statutes §§
776.012 and
776.032....
...she lacks probable cause to arrest, even when the facts and circumstances establish that the person meets all elements of the offense." Id. (emphasis added). To those considerations, Florida's Stand Your Ground law, Florida Statutes §§
776.012 and
776.032, adds another layer to the probable cause analysis....
...such force is necessary to prevent imminent death or great bodily harm to himself." Fla. Stat. §
776.012 (2). As a consequence, an officer "may not arrest [a] person for using ... force unless [the officer] determines that there is probable cause that the force that was used ... was unlawful." Id. §
776.032(2). As noted by the Eleventh Circuit, " Section
776.032(1) expressly grants defendants a substantive right to not be arrested, detained, charged, or prosecuted as a result of the use of legally justified force." *1377 Davis , 734 F....
...13 That is a bridge too far. Therefore, even under the circumstances alleged in the Complaint, Chief Manley's conduct was "in full accord with the Florida Supreme Court's judicial development of how law enforcement officials should implement Florida Statutes section
776.032." Drew ,
2018 WL 3930117 , at *12 ; see id....
...post-arrest evidentiary analysis ( see Doc. 173, pp. 5-9), then the statutory protection against being "arrested, detained, or charged" as a result of the use of legally justified force would be effectively written out of the statute. See Fla. Stat. § 776.032 (1)....
CopyCited 1 times | Published | Supreme Court of Florida
...HIMSELF OR HERSELF OR ANOTHER OR TO PREVENT THE
IMMINENT COMMISSION OF A FORCIBLE FELONY, IS
LIMITED TO INVOKING A DEFENSE UNDER SECTION
776.05(1), OR IS ALSO PERMITTED TO SEEK IMMUNITY
FROM CRIMINAL PROSECUTION UNDER SECTIONS
776.012(1) AND
776.032(1), FLORIDA STATUTES (2013), MORE
COMMONLY KNOWN AS FLORIDA’S “STAND YOUR
GROUND” LAW.
Peraza, 226 So....
...l
factual disputes consistently with Deputy Peraza’s self-defense theory.
After being indicted for manslaughter with a firearm, Deputy Peraza moved
to dismiss the indictment, citing immunity from prosecution under sections
776.012(1) and
776.032(1), Florida Statutes (2013), commonly known as Florida’s
“Stand Your Ground” law, and under section
776.05, Florida Statutes (2013).
After the evidentiary hearing, the judge made the findings set forth above and
granted Deputy Peraza...
...s not have a
duty to retreat if:
(1) He or she reasonably believes that such force is necessary to
prevent imminent death or great bodily harm to himself or herself or
another . . . .
§
776.012(2), Fla. Stat. (2013). Section
776.032, titled “Immunity from criminal
prosecution and civil action for justifiable use of force,” and also part of the Stand
Your Ground law, provides in relevant part that
[a] person who uses force as permitted in s.
776.012, s.
776.013, or s.
776.031 is justified in using such force and is immune from criminal
prosecution and civil action for the use of such force . . . .
§
776.032(1), Fla....
...3d at 20 (emphasis added).
Respectfully, to suggest that the doctrine of in pari materia applies in
every case is incorrect as a matter of law. As the circuit court
correctly found in this case, because sections
776.012(1)’s and
776.032(1)’s plain language is clear and unambiguous, Caamano
“need not have gone into the doctrine of in pari materia at all.” See
English v....
...As the Second District’s analysis recognizes, given the question presented
in this case and the arguments made, some consideration of section
776.05, Fla.
Stat., is necessary in order to determine whether it creates an ambiguity not
otherwise apparent on the face of sections
776.012(1) and
776.032(1), Fla....
...Therefore, the
-8-
real question, clearly and precisely framed, is whether Deputy Peraza is “immune
from criminal prosecution” such that he is entitled to a pretrial immunity
determination. That immunity is addressed only in section
776.032(1), which
plainly says that the immunity is afforded to any “person who uses force as
permitted in s.
776.012.” §
776.032(1)....
...1, 2018), “where the Court is tasked with construing a statute, our first (and
often only) step . . . is to ask what the Legislature actually said in the statute, based
upon the common meaning of the words used.” (Internal quotation marks and
citation omitted.) Here, the plain language of section 776.032(1) answers the
question presented.
CONCLUSION
For the foregoing reasons, we resolve the certified conflict and answer the
certified question by holding that law enforcement officers are eli...
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2013 WL 6479037
...The underlying criminal case involves a tragic deadly shooting in a post office parking lot. *868 In Case No. 4D12-4559, the defendant petitioned this court for a writ of prohibition, challenging an order that denied his motion to dismiss the criminal charges against him under sections
776.032 and
776.012, Florida Statutes (2009), the “Stand Your Ground” law....
...The victim exited his vehicle, and angrily approached the defendant, yelling at him. Fearing for his safety, the defendant shot and killed the victim. The State charged the defendant with manslaughter. The defendant moved to dismiss the Information based on sections
776.012 and
776.032, Florida Statutes, the “Stand Your Ground” law....
...of force was not reasonable. Specifically, the defendant “did not reasonably believe that the use of deadly force was necessary to prevent death or great bodily harm to himself or his family, and that immunity does not attach under Florida Statute section 776.032.” The trial court denied the motion to dismiss....
...At first glance, the title to each section of chapter 776 demarcates the line between justifiable use of force in defense of self and others and the presumption that applies under the castle doctrine. As the Second District explained in Little v. State,
111 So.3d 214, 219 (Fla. 2d DCA 2013), sections
776.012,
776.013, and
776.032 provide alternative forms of immunity....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2014 WL 3928449, 2014 Fla. App. LEXIS 12423
...The underlying
criminal case involves a tragic deadly shooting in a post office parking lot.
In Case No. 4D12-4559, the defendant petitioned this court for a writ
of prohibition, challenging an order that denied his motion to dismiss the
criminal charges against him under sections
776.032 and
776.012,
Florida Statutes (2009), the “Stand Your Ground” law....
...The victim exited his
vehicle, and angrily approached the defendant, yelling at him. Fearing for
his safety, the defendant shot and killed the victim.
The State charged the defendant with manslaughter. The defendant
moved to dismiss the Information based on sections
776.012 and
776.032,
Florida Statutes, the “Stand Your Ground” law....
...2011).
2
Specifically, the defendant “did not reasonably believe that the use of
deadly force was necessary to prevent death or great bodily harm to himself
or his family, and that immunity does not attach under Florida Statute
section
776.032.” The trial court denied the motion to dismiss.
The State then requested the trial court to determine whether the
defendant’s possession of a firearm on post office property constituted
“unlawful activity” under section
776.013(3)....
...line between justifiable use of force in defense of self and others and the
presumption that applies under the castle doctrine. As the Second District
explained in Little v. State,
111 So. 3d 214, 219 (Fla. 2d DCA 2013),
sections
776.012,
776.013, and
776.032 provide alternative forms of
immunity.
We do not agree that there is a conflict between the
provisions in sections
776.012(1) and
776.013(3)....
CopyPublished | Florida 2nd District Court of Appeal
...The right of a prospective
adoptive parent to obtain custody over the child pending adoption is a
right that may only be exercised during the pendency of the termination
of parental rights proceedings. In this way, it is analogous to the denial
of defense of self or others immunity under section 776.032, Florida
Statutes (2021), which is also reviewable by certiorari....
CopyPublished | Florida 2nd District Court of Appeal
Love, 286 So. 3d at 187 ("Here, although section
776.032(4) may make it more difficult—as a practical
CopyPublished | Florida 5th District Court of Appeal
....
deadly force in accordance with this subsection does
not have a duty to retreat and has the right to stand
his . . . ground if the person using . . . the deadly force
is not engaged in a criminal activity and is in a place
where he . . . has a right to be.
Id. Section 776.032, Florida Statutes (2017), part of Florida’s
Stand Your Ground law, provides immunity from prosecution for
those who use justifiable force in self-defense....
CopyPublished | Florida 4th District Court of Appeal
...retionary review filed,
No. SC18-789 (Fla. May 17, 2018) (stayed pending disposition of Love);
Commander v. State,
246 So. 3d 1303 (Fla. 1st DCA 2018) (accepting the
state’s concession of error in failing to apply the amendment retroactively).
Section
776.032(4), Florida Statutes (2017), enacted by Chapter 2017-
72, Laws of Florida, became effective June 9, 2017, and provides:
(4) In a criminal prosecution, once a prima facie claim of self-
defense immunity from criminal prose...
...ion 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).
§ 776.032(4), Fla....
...le felony.” Id.
Petitioner did not show any of the circumstances in section
776.013(2)
that create a presumption of fear of death or great bodily harm.
To raise a “prima facie claim of self-defense immunity from criminal
prosecution” under section
776.032(4), a defendant must show that the
elements for the justifiable use of force are met....
... require the defendant to testify or to otherwise present or point to evidence
from which the elements for justifiable use of force can be inferred. Only
then would the burden shift to the state to “overcome the immunity” by
clear and convincing evidence. § 776.032(4), Fla....
...Petitioner did not give police an account of what
led to the shooting. At the time of his arrest, he did not assert that the
victim had tried to rob him or that he shot the victim in self-defense.
Nils Herlitz, The Meaning of the Term “Prima Facie,” 55 LA. L. REV. 391 (1994). We
believe that section 776.032(4) adopts the first definition of a “prima facie case.”
-5-
Petitioner did not testify at the hearing, and he has never provided any
account of what transpired in the motel parking lot....
CopyPublished | Florida 3rd District Court of Appeal
prosecution by clear and convincing evidence. See §
776.032(4), Fla. Stat. (2020) (“In a criminal prosecution
CopyPublished | Florida 4th District Court of Appeal
...The defendant does not dispute that he shot
the victim. He claims he is immune from prosecution because he
reasonably believed that his use of deadly force was necessary to prevent
imminent death or great bodily harm or to prevent the imminent
commission of a forcible felony. §§
776.012(2),
776.032(1), Fla....
...Stat.
(2021). The state concedes the defendant raised a prima facie case of self-
defense immunity in his motion to dismiss, and therefore it had the burden
of proving by clear and convincing evidence that his use of deadly force
was not justified. § 776.032(4), Fla....
...using deadly
force. All that is required is that he or she reasonably believe that using
such force is necessary to prevent “imminent death or great bodily harm”
or to prevent “the imminent commission of a forcible felony.” §§
776.012(2),
776.032(1), Fla....
...A defendant need
only raise a prima facie self-defense claim. Martin v. State, No. 4D2025-
0304,
2025 WL 1572584, at *2 (Fla. 4th DCA June 4, 2025). Once
established, our legislature has declared that the state bears the burden
of overcoming a self-defense claim by clear and convincing evidence.
§
776.032(4), Fla....
...murder,
second-degree murder, manslaughter, or any other count stemming from
his shooting Bell. Nonetheless, I concur in the majority opinion as I am
compelled to conclude that our current applicable SYG “deadly force”
statutes (§§
776.012(2),
776.032(1), Fla....
CopyPublished | Florida 3rd District Court of Appeal
...Petitioner, Rene Toiran, seeks a writ of prohibition directing the trial court to relieve him from criminal prosecution for second degree murder for a shooting death that occurred on January 12, 2015, on the ground that he is immune from prosecution under Florida's Stand Your Ground Law, *949 section 776.032 of the Florida Statutes (2017). For the following reasons, we deny the petition. After Toiran filed his motion below arguing that he is immune from criminal prosecution, but before the immunity motion was heard, the Florida Legislature amended section 776.032, effective June 9, 2017, by adding subsection (4), which creates a new standard for determining immunity: 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). § 776.032(4), Fla....
...he constitutionality and retroactivity of subsection (4). On July 6, 2017, the trial court 1 entered an order finding that subsection (4) was constitutional, but not retroactive, and directing that an immunity hearing be held applying the version of section 776.032 in effect when the instant shooting death occurred (on January 12, 2015)....
...At the time the trial court conducted the immunity hearing and issued its ruling, it did not have the benefit of this Court's recent decision in Love v. State ,
247 So. 3d 609 , 612 (Fla. 3d DCA 2018), wherein we concluded that the old immunity standard continues to apply to crimes committed before the 2017 amendment to section
776.032....
CopyPublished | Florida 5th District Court of Appeal
...ndamental error because the instruction was
given at defense counsel’s request.1 Additionally, we hold that Fuller is entitled to a new
Stand Your Ground pretrial immunity hearing where the State will bear the burden of proof
in accordance with section 776.032(4), Florida Statutes (2017), which should be applied
retrospectively in this pending case....
...y alcohol and drug use.
The sexual battery charge was severed for a separate trial.
A. Pretrial Stand Your Ground Immunity Hearing
Fuller moved to dismiss the murder charge, claiming that he was immune from
prosecution under section 776.032, Florida Statutes (2011), a part of the Stand Your
Ground law....
...retrospectively in this case.3 We acknowledge that our analysis is not being done in a
vacuum, as the other four district courts of appeal have already considered this issue,
resulting in evenly divided outcomes.4
A little history is in order. The Stand Your Ground statute, section 776.032, was
passed in 2005, but at first “there was no prescribed procedure that a trial court should
employ when a defendant claimed immunity under the statute.” Martin v....
...Weekly D1016, D1016 n.1 (Fla. 2d DCA May 4, 2018). The Florida Supreme Court
addressed the procedure in two opinions:
First, in Dennis v. State,
51 So. 3d 456, 463 (Fla. 2010), the
supreme court held that immunity under section
776.032
should be determined at a pretrial evidentiary hearing....
...2015), the
supreme court clarified that the defendant bears the burden
of proving entitlement to immunity by a preponderance of the
evidence.
Id. On June 9, 2017, the governor of Florida signed into law an amendment to section
776.032 that added subsection (4), which legislatively altered the judicially-determined
quantum and burden of proof:
3 The words “retroactively” and “retrospectively” are used synonymously in the
different cases analyzing this issue.
4 Allowing retrospective application: Martin v....
...Second, the revised statute declared that the quantum or standard of proof at the
pretrial immunity hearing would be by “clear and convincing evidence” rather than the
judicially-adopted “preponderance of the evidence” quantum of proof. § 776.032(4)....
...retrospectively in this case.3 We acknowledge that our analysis is not being done in a
vacuum, as the other four district courts of appeal have already considered this issue,
resulting in evenly divided outcomes.4
A little history is in order. The Stand Your Ground statute, section 776.032, was
passed in 2005, but at first “there was no prescribed procedure that a trial court should
employ when a defendant claimed immunity under the statute.” Martin v....
...Weekly D1016, D1016 n.1 (Fla. 2d DCA May 4, 2018). The Florida Supreme Court
addressed the procedure in two opinions:
First, in Dennis v. State,
51 So. 3d 456, 463 (Fla. 2010), the
supreme court held that immunity under section
776.032
should be determined at a pretrial evidentiary hearing....
...2015), the
supreme court clarified that the defendant bears the burden
of proving entitlement to immunity by a preponderance of the
evidence.
Id. On June 9, 2017, the governor of Florida signed into law an amendment to section
776.032 that added subsection (4), which legislatively altered the judicially-determined
quantum and burden of proof:
3 The words “retroactively” and “retrospectively” are used synonymously in the
different cases analyzing this issue.
4 Allowing retrospective application: Martin v....
...Second, the revised statute declared that the quantum or standard of proof at the
pretrial immunity hearing would be by “clear and convincing evidence” rather than the
judicially-adopted “preponderance of the evidence” quantum of proof. § 776.032(4)....
... burden and quantum of proof were substantive or procedural, one only has to consider
the supreme court’s repeated pronouncements in Bretherick, which preceded and some
argue was the catalyst for the 2017 legislative revision that added subsection (4) to
section 776.032....
...o follow Shaps or for
the Fourth District’s finding that unspecified differences between civil and criminal cases
prevent application of Shaps in criminal cases.
Applying binding supreme court authority, we find that the 2017 revision of section
776.032—adding subsection (4), which effectively shifts the burden of proof from the
defendant to the State and increases the quantum or standard of proof from a
preponderance of the evidence to proof by clear and convincing evidence, is...
...clear and convincing evidence.
CONCLUSION
For the reasons set forth above, we hold that Fuller is entitled to a new pretrial
Stand Your Ground immunity hearing to be conducted in accordance with the procedure
set forth in section 776.032(4). If Fuller is not found entitled to immunity from prosecution
following that hearing, a new trial shall be conducted.
We certify that on the issue of retrospective application of section 776.032(4), our
decision in this case expressly and directly conflicts with the decision of the Third District
in Love v....
CopyPublished | Florida 5th District Court of Appeal | 2014 Fla. App. LEXIS 14611, 2014 WL 4648204
PER CURIAM. Deodat Satyanand filed a petition for a writ of mandamus, seeking to compel the trial court to conduct a pretrial evidentiary hearing on his motion to dismiss the charges based on immunity from prosecution under section 776.032, Florida Statutes (2012) (justifiable use of force)....
...Because Satyanand is entitled to receive a pretrial evidentiary hearing on this issue, we grant the petition. Satyanand was charged with aggravated battery with great bodily harm. He filed a motion seeking dismissal of the charges, claiming immunity from prosecution under section 776.032, Florida Statutes (2012)....
...f the continuances in the trial court below were at the defense’s request. Case law supports Satyanand’s argument that the trial court is required to conduct a pretrial evidentiary hearing on motions to dismiss based on a claim of immunity under section
776.032. Specifically, in Dennis v. State,
51 So.3d 456, 461-64 (Fla.2010), the Florida Supreme Court expressly held that where a criminal defendant files a motion to dismiss pursuant to section
776.032, the trial court should conduct a pretrial evidentiary hearing and decide the factual question of the applicability of statutory immunity. In so holding, the Court explained that “section
776.032 contemplates that a defendant who establishes entitlement to the statutory immunity will not be subjected to trial[,]” and expressly approved the First District’s ruling in Peterson v....
CopyPublished | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 14566, 2011 WL 4056294
...ON RECONSIDERATION ON MANDATE FROM THE SUPREME COURT OF FLORIDA PER CURIAM. James Patrick Wonder, the defendant in a criminal prosecution pending in the Broward County Circuit Court, sought certiorari review of an order denying his request for an evidentiary hearing on the issue of immunity from prosecution pursuant to section 776.032, Florida Statutes (2009) (the "Stand Your Ground" law, enacted by chapter 2005-27, section 5, at 202, Laws of Florida)....
...decision in Dennis v. State,
51 So.3d 456 (Fla.2010). In Dennis, the supreme court disapproved our reasoning in Dennis, [1] approved the reasoning of Peterson, and concluded that "where a criminal defendant files a motion to dismiss on the basis of section
776.032, the trial court should decide the factual question of the applicability of the statutory immunity." *372 Id....
CopyPublished | Supreme Court of Florida
...21
CANADY, C.J.
In this case we consider whether a defendant convicted by jury
verdict after raising a self-defense claim is entitled to a new
immunity hearing if the trial court applied the incorrect standard at
the immunity hearing under section 776.032, Florida Statutes
(2017), known as Florida’s Stand Your Ground law....
...I. BACKGROUND
Under the Stand Your Ground law, a person is generally
“immune from criminal prosecution and civil action” when that
person justifiably uses or threatens to use force under certain
circumstances. § 776.032(1), Fla. Stat. (2017). The immunity from
prosecution “includes arresting, detaining in custody, and charging
or prosecuting the defendant.” Id. Section 776.032 provides
immunity for “[a] person who uses or threatens to use force as
permitted in s....
...entitlement to Stand Your Ground immunity at the pretrial
evidentiary hearing.” Bretherick v. State,
170 So. 3d 766, 775 (Fla.
2015), superseded by statute as stated in Sparks v. State,
299 So.
3d 1 (Fla. 4th DCA 2020). In apparent response to Bretherick, the
Legislature amended section
776.032 in 2017, adding the following
subsection:
(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).
-3-
See Ch. 2017-72, Laws of Fla.; §
776.032(4), Fla....
...defendant did not act in self-defense.
Boston was charged with aggravated battery with a deadly
weapon, arising from a 2016 altercation in which he struck his
former employer with a hammer. Boston filed a motion to dismiss,
arguing that he was entitled to immunity under section 776.032.
The parties agreed that the trial court would hear Boston’s
immunity motion during trial. Before commencing the trial and
immunity hearing on November 8, 2017, the trial court heard
argument regarding whether to apply the 2017 burden-shifting
amendment to section 776.032 retroactively in Boston’s case....
...The jury also rejected Boston’s self-defense claim, and
ultimately convicted him of the lesser included offense of
misdemeanor battery.
While Boston’s initial appeal was pending review in this Court
in 2019, we decided Love v. State,
286 So. 3d 177 (Fla. 2019), in
which we held that the 2017 amendment to section
776.032 applied
to immunity hearings taking place on or after the statute’s effective
date of June 9, 2017....
...As a
result, this Court granted the State’s petition for review of Boston v.
State (Boston I),
260 So. 3d 445, 446 (Fla. 1st DCA 2018), quashed,
45 Fla. L. Weekly S134 (Fla. Feb. 28, 2020), quashed the First
District’s decision below, and remanded to the First District for
reconsideration in light of Love and section
776.032(4), Florida
Statutes (2017).
On remand, the First District concluded that because Boston’s
immunity hearing took place after the amendment’s effective date,
-5-
the trial court erred in failing to apply the 2017 amendment in that
hearing....
...State,
51 So. 3d 456 (Fla. 2010). In Dennis,
“we consider[ed] whether a trial court should conduct a pretrial
evidentiary hearing and resolve issues of fact when ruling on a
motion to dismiss asserting immunity from criminal prosecution
pursuant to section
776.032, Florida Statutes (2006).”
51 So. 3d at
458. Dennis was charged with attempted first-degree murder (later
reduced to aggravated battery) and sought immunity by filing a
motion to dismiss under section
776.032. Id. at 458-59. The trial
court denied Dennis an evidentiary hearing on his motion,
“conclud[ing] that in enacting section
776.032, the Legislature did
-7-
not intend to take the question of immunity away from the jury.”
Id....
...aring; Boston II
similarly held that the same jury determination cures a trial court’s
erroneous application of an incorrect burden and standard of proof
at an immunity hearing.
-8-
The 2017 amendment to section 776.032 states that “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.”
§ 776.032(4), Fla....
CopyPublished | Florida 3rd District Court of Appeal
...Assistant Attorney General, for respondent.
Before HENDON, GORDO and BOKOR, JJ.
PER CURIAM.
Jovan Casanova petitions this Court for writ of certiorari seeking to
quash the lower tribunal’s order denying his motion to dismiss pursuant to
section 776.032, Florida Statutes (2021)—Florida’s “Stand Your Ground”
law....
...in material injury that cannot be adequately remedied on appeal, we grant
the petition for writ of certiorari and quash the order under review.
Casanova was charged with one count of misdemeanor battery.
Casanova filed an unsworn pretrial motion to dismiss pursuant to section
776.032, asserting that he is immune from criminal prosecution....
...either: i) sworn to by a person with personal knowledge of the facts alleged
therein; or ii) supported by evidence or testimony that establishes the facts
set forth in the motion.” As such, the lower tribunal did not address
Casanova’s motion to dismiss on the merits.
Section 776.032(4) of Florida’s Stand Your Ground law provides as
follows:
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 im...
CopyPublished | Florida 4th District Court of Appeal
...hearing and (if unsuccessful at the SYG hearing) a new trial.
Background
Defendant was charged with battery. A public defender was appointed
to represent him. The public defender filed a motion to dismiss based on
the SYG law, section 776.032, Florida Statutes (2022)....
...A. An SYG Hearing is a “Critical Stage” of a Criminal Process
Florida’s SYG law grants immunity to anyone who justifiably “uses or
threatens to use force.” Acostafigueroa v. State,
373 So. 3d 908, 911 (Fla.
4th DCA 2023) (quoting §
776.032(1), Fla....
CopyPublished | Florida 4th District Court of Appeal
...animals while in possession of a firearm, discharging a firearm in public,
and discharging a firearm in a residential area. Because the trial court
departed from the essential requirements of law in its interpretation of the
scope of immunity granted by section 776.032(1), Florida Statutes (2022),
the petitioner suffered irreparable harm when the trial court deprived him
of his procedural right to a hearing to determine whether he is entitled to
SYG immunity....
...The
petitioner gave his version of the events to the pit bull’s owner and then
left.
After the state filed charges, the petitioner moved to dismiss the
prosecution based on immunity under section
776.012(2), Florida Statutes
(2022) (providing for the justifiable use of deadly force in defense of
person), and section
776.032(1), Florida Statutes (2022) (providing for
immunity from prosecution when force is used as permitted by section
776.012)....
...only by a person against another person and does not apply to the use of
deadly force against an animal.
After hearing argument from both sides, the trial court agreed with the
state and struck the motion to dismiss, concluding that immunity from
prosecution pursuant to section 776.032 does not apply to a person who
has used deadly force against an animal, but instead “is applicable only in
cases involving person to person interactions.”
The petitioner timely sought certiorari review of the trial court’s d...
...of his request for a hearing on his SYG immunity claim.
Certiorari Analysis
A petition for writ of certiorari is the proper vehicle to seek appellate
relief from an order striking a motion to dismiss asserting immunity under
section 776.032....
...solely against persons and not animals. See Fagan v. Jackson Cnty. Hosp.
Dist.,
379 So. 3d 1213, 1215 (Fla. 1st DCA 2024) (“We are not at liberty to
add words to statutes that were not placed there by the Legislature.”
(quoting Hayes v. State,
750 So. 2d 1, 4 (Fla. 1999))).
Section
776.032(1), which grants immunity from criminal and civil
actions for authorized uses of force, does not change this result....
...felony. However, we can envision situations in which a dog could be used by an
assailant to commit a forcible felony.
4
heirs of the person against whom the force was used or
threatened . . . .
§ 776.032(1), Fla....
...it only covers claims by or on
behalf of the “person against whom the force was used.” Id. (emphasis
added). The trial court agreed with the state’s reasoning. However, the
reasoning is flawed.
The primary flaw with this reasoning is that section 776.032(1) frames
entitlement to immunity with reference to who brings the action....
...osecution.
Because entitlement to immunity is framed from the perspective of who
brings the action, immunity as to criminal prosecutions could not be
limited to force used or threatened to be used against a person, as the
state contends, because section 776.032(1) does not limit immunity in
criminal prosecutions in the same manner as civil actions....
...tions under the common law.
5
the victim, person, personal representative, or heirs of the person against
whom the force was used or threatened . . . .” Thus, from the specific
context of the words used in section 776.032(1), we conclude the
legislature was clear that immunity from a criminal prosecution is not
limited to the use of force against a person. 3
Even if we were to determine section 776.032(1) to be ambiguous as to
whether immunity applies to deadly force against an animal, we would still
conclude the trial court erred in its interpretation for failure to apply the
rule of lenity....
...st be resolved in favor
of the person charged with an offense.’” (quoting State v. Byars,
823 So.
2d 740, 742 (Fla. 2002))).
Conclusion
We conclude as a matter of law, based on section
776.012(2)’s and
section
776.032(1)’s plain meaning and context, a person is immune from
criminal prosecution for the use of deadly force against an animal where
the person has a reasonable belief that such force is necessary to prevent
imminent death or great bodi...
...4
Petition granted.
DAMOORGIAN, J., concurs.
ARTAU, J., concurs specially with opinion.
ARTAU, J., concurring specially.
I concur with the result reached by the majority but write separately to
explain my disagreement with its statutory interpretation analysis.
3We do not address the reach of section
776.032(1) immunity from civil actions
regarding use of force against an animal, as that issue is not before us.
4 We recognize our opinion may make criminal prosecutions for animal cruelty
more challening for the state when a defendant claims self-defense under section
776.012(2)....
...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,” except in circumstances not applicable
here. § 776.032(1), Fla....
...Dep’t of Bus. & Pro. Regul., Div.
of Pari-Mutuel Wagering,
15 So. 3d 793, 796 (Fla. 1st DCA 2009))).
Furthermore, interpreting the phrase here in accordance with the rule
of the last antecedent is consistent with how the phrase is used in the
context of section
776.032(1) because, as the majority notes, the phrase
makes Stand Your Ground immunity available based on who brings an
action....
...last
antecedent since it is a listing limited to parties who could only bring a
“civil action.”
The majority hypothetically suggests that if the Legislature intended
the interpretation argued by the State, the Legislature would have revised
section 776.032(1) to say: “A person ....
...the defendant against the victim, person, personal representative, or heirs
of the person against whom the force was used or threatened[.]” (emphasis
added).
However, applying the rule of the last antecedent to the majority’s
hypothetical revision of section 776.032(1) would not result in any
interpretation that would meaningfully differ from our interpretation here.
In other words, the justifiable “use or threatened use of such force” against
8
an anima...
...r from the
construction arrived at by the majority. See id.
Nonetheless, I agree with the majority’s conclusion that the defendant
presented a prima facie claim for Stand Your Ground immunity, thereby
entitling him to an immunity hearing. See § 776.032(4), Fla....
...lusion as the majority, I do so
for different reasons, consistent with the principles enunciated by our
supreme court in Conage, with due regard to the rule of the last antecedent
as a “textual and structural clue that bear[s] on the meaning of” section
776.032(1)....
CopyPublished | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 15332, 2015 WL 6022583
...n, has failed to attach portions of the record upon which, the State, and this Court, can determine whether the instruction was proper.” AFFIRMED in part; REVERSED in part; and REMANDED for further proceedings. SAWAYA and COHEN, JJ., concur. . See § 776.032, Fla....
CopyPublished | Florida 5th District Court of Appeal
...Ground Motion. Specifically,
the State argues that the motion was facially insufficient and that, even if it
was sufficient, evidence presented at the evidentiary hearing overcame the
defense by “clear and convincing evidence” as required by section
776.032(4), Florida Statutes (2019)....
...against the other’s imminent use of unlawful force.” Once a
defendant has raised a prima facie claim of self-defense immunity at a
pretrial immunity hearing, the burden of disproving that claim by clear and
convincing evidence is on the State. § 776.032(4), Fla....
...The rule under which Appellee moved
states that motions under subsections (c) and (d) must be alleged
“specifically” and “with specificity.” Fla. R. Crim. P. 3.190.
In State v. Moore,
337 So. 3d 876, 882 (Fla. 3d DCA 2022), the Third
District recently reversed a similar dismissal under section
776.032(4)
because the defendant did not “allege the necessary conduct, statements,
sequence, timing, and other circumstances surrounding the relevant
actions.” This was notwithstanding allegations “in conclusory fashion” that
the defendant “acted in self-defense.” Id....
CopyPublished | Florida 3rd District Court of Appeal
...2
clinics in South Florida. She was subsequently arrested and indicted for first-
degree murder.
Carballo unsuccessfully claimed immunity under Florida’s “Stand Your
Ground” law, and the case proceeded to trial. See § 776.032, Fla....
CopyPublished | Florida 1st District Court of Appeal
...1st DCA 2018), and Edwards v. State,
2018 WL 4997631
(Fla. 1st DCA Oct. 16, 2018), we are constrained to reverse the trial
court’s ruling on the Stand Your Ground motion.
Before trial, the parties argued whether the 2017 amendment
to the Stand Your Ground law, section
776.032(4), Florida
Statutes, would apply to Boston’s offense....
...The amendment to the statute changed both the burden
and quantum of proof required for establishing entitlement to
immunity. Now, when a defendant raises a prima facie claim of
Stand Your Ground immunity, the State must prove by clear and
convincing evidence that the defendant is not entitled to
immunity. § 776.032(4), Fla....
...ively, Boston is
entitled to a new immunity hearing. Commander,
246 So. 3d at
1304; Edwards,
2018 WL 4997631 at *1, n.1. See also Martin v.
State, 43 Fla. L. Weekly D1016,
2018 WL 2074171 (Fla. 2d DCA
May 4, 2018) (holding that the 2017 amendment to section
776.032
is procedural in nature and therefore can be applied retroactively).
But see Love v....
...nding decisions in
Commander and Edwards, we reverse and remand for the trial
court to reconsider Boston’s motion for immunity under the Stand
Your Ground statute and the State’s burden of proof under section
2
776.032(4), Florida Statutes (2017)....
...evidentiary hearing
because the central purpose of such a motion is for the defendant
to seek immunity from trial. See Dennis v. State,
51 So. 3d 456,
461-64 (Fla. 2010) (holding that where a criminal defendant files a
motion to dismiss pursuant to section
776.032, the trial court
should conduct a pretrial evidentiary hearing and decide the
factual question of the applicability of statutory immunity); see
also Satyanand v....
...However, here the parties stipulated
that the trial court need not conduct the immunity hearing before
trial, but could instead consider Boston’s motion for immunity at
trial. For this reason, on remand the trial court may rely on the
evidence adduced at trial to determine whether the State met its
burden under section 776.032(4), Florida Statutes (2017), or, in the
alternative, hold a new evidentiary hearing.
AFFIRMED in part; REVERSED in part and REMANDED.
WOLF and LEWIS, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla....
CopyPublished | Florida 2nd District Court of Appeal
...y
causing great bodily harm, permanent disability, or permanent disfigurement.
§
784.045(1)(a)(1), Fla. Stat. (2016). He now seeks a writ of prohibition after the trial
court denied his "Stand Your Ground" motion to dismiss. See §§
776.012 and
776.032,
Fla....
...Melchild's head and
pushed his thumb into Mr. Melchild's eye. He was scared and thought it necessary to
incapacitate Mr. Melchild because he had no chance of escape.
Mr. Garcia moved to dismiss the charge against him based on the
statutory immunity provided by sections
776.032 and
776.012....
...Your Ground statute, we are unable to determine whether Mr. Garcia is entitled to
immunity on the merits. Thus, prohibition is not the appropriate vehicle under which to
proceed. We best proceed under our certiorari jurisdiction. Jefferson,
264 So. 3d at
1023.
Section
776.032(1) provides immunity to a person using force as
permitted in sections
776.012,
776.013, or
776.031....
CopyPublished | Florida 5th District Court of Appeal | 2012 WL 5932998, 2012 Fla. App. LEXIS 19084
...Although the Flori *679 da Rules of Criminal Procedure do not expressly provide for evidentiary hearings on motions to dismiss, the supreme court has authorized the procedure. See Dennis v. State,
51 So.3d 456 (Fla.2010) (holding that a defendant claiming immunity pursuant to section
776.032(1), Florida Statutes, must file a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(b) and requiring trial court to address the motion at a pretrial evidentiary hearing).
CopyPublished | Florida 3rd District Court of Appeal
...We affirm.
Toiran was charged with second-degree murder with a firearm.
Pursuant to Florida Rule of Criminal Procedure 3.190(b), Toiran filed a pre-
trial motion to dismiss, asserting that he qualifies for statutory immunity from
criminal prosecution under Florida’s Stand Your Ground (“SYG”) law, section
776.032(1), Florida Statutes, because he was acting in self-defense when
he shot the victim (“SYG motion”).
At the time of the shooting and when Toiran filed his SYG motion,
under the 2015 version of section
776.032, during an SYG immunity hearing,
a defendant was required to prove by a preponderance of the evidence that
he or she acted in self-defense. See Bretherick v. State,
170 So. 3d 766,
775 (Fla. 2015), superseded by statute as stated in Sparks v. State,
299 So.
3d 1 (Fla. 4th DCA 2020). However, the Florida Legislature amended section
776.032 by adding subsection (4), which became effective on June 9, 2017,
and provides as follows:
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).
2
§
776.032(4), Fla. Stat. (2017); Ch. 2017-72, § 1, Laws of Fla.; see also
Derossett v. State,
311 So. 3d 880, 889 (Fla. 5th DCA 2019) (explaining that
“once a defendant raises a prima facie claim of self-defense immunity under
[section
776.032(4)], the State bears the burden at the pretrial immunity or
Stand Your Ground hearing of proving, by clear and convincing evidence,
why the defendant is not entitled to immunity from further prosecution”).
In July 2017—after the effective date of section
776.032(4), Florida
Statutes (2017)—the trial court conducted an evidentiary hearing on Toiran’s
SYG motion. Applying the burden of proof under the 2015 version of section
776.032, the trial court denied Toiran’s motion to dismiss.
Toiran then filed a petition for writ of prohibition, arguing that he is
immune from prosecution under Florida’s SYG statute, section
776.032,
Florida Statutes (2017). This Court noted that the lower tribunal did not have
the benefit of this Court’s decision in Love v. State,
247 So. 3d 609, 612 (Fla.
3d DCA 2018), in which this Court held that the burden of proof in the 2015
version of section
776.032 continues to apply to crimes committed before the
2017 amendment adding section
776.032(4)....
...relevant decisions. First, In December 2019, the Florida Supreme Court
quashed this court’s decision in Love v. State,
247 So. 3d 609 (Fla. 3d DCA
2018). See Love v. State,
286 So. 3d 177 (Fla. 2019). The Florida Supreme
Court concluded that “[s]ection
776.032(4) is a procedural change in the law
and applies to all Stand Your Ground immunity hearings conducted on or
after the statute’s effective date.” Love,
286 So. 3d at 190. Thus, based on
the Florida Supreme Court’s decision in Love, in denying Toiran’s SYG
motion, the trial court incorrectly applied the 2015 version of section
776.032,
rather than section
776.032(4), Florida Statutes (2017), which places the
burden on the State to prove by clear and convincing evidence that a
4
defendant is not entitled to immunity.
Second, in October 2021, the Florida Supreme Court issued its
decision in Boston v....
...ct answered in the negative in Boston
II: “[W]hether a defendant convicted by jury verdict after raising a self-
defense claim is entitled to a new immunity hearing if the trial court applied
the incorrect standard at the immunity hearing under section
776.032,
Florida Statutes (2017), known as Florida’s Stand Your Ground law.”
Boston,
2021 WL 4613829, *1....
...Dennis was charged with aggravated battery with
1
The Florida Supreme Court refers to this decision as Boston II.
5
a deadly weapon, a hammer. Dennis filed a motion to dismiss asserting
immunity from criminal prosecution under section
776.032, Florida Statutes
(2006). The trial court denied Dennis an evidentiary hearing, “conclud[ing]
that in enacting section
776.032, the Legislature did not intend to take the
question of immunity away from the jury.” Boston,
2021 WL 4613829, *3
(quoting Dennis, 51 So....
CopyPublished | Florida 4th District Court of Appeal
...for further proceedings.
Background
The State charged Chavers with second-degree murder with a firearm
occurring on November 13, 2015. Chavers filed a motion to dismiss based
on immunity under sections
776.012(2) and
776.032(1), Florida Statutes
(2016), and Florida Rule of Criminal Procedure 3.190(b)....
...criminal activity at the time of the shooting, even though both the
prosecutor and defense counsel argued this issue at the hearing.
The State gave notice of appeal.
Appellate Analysis
In a motion to dismiss for immunity under section
776.032, Florida
Statutes, “[t]he trial court’s factual findings are entitled to deference and
must be supported by competent substantial evidence.” Joseph v. State,
103 So. 3d 227, 229 (Fla. 4th DCA 2012). “The trial court’s legal
conclusions are reviewed de novo.” Id. at 230.
Chavers sought immunity from prosecution under sections
776.032(1)
and
776.012(2), Florida Statutes (2016). Section
776.032(1) provides, in
pertinent part:
(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 . . . .
§
776.032(1), Fla....
...Our
opinion focuses on the import of the second sentence, and we do not
address Chavers’s arguments regarding what constitutes “a criminal
activity” for purposes of section
776.012(2) and who has the burden of
proof at the evidentiary hearing to determine immunity. We note that in
2017, section
776.032 was amended to add subsection (4), which
addresses the burden of proof for claims of immunity. §
776.032(4), Fla.
Stat. (effective June 9, 2017). 1
1 The amendment to section
776.032, now codified as subsection (4), reads as
follows:
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).
§
776.032(4), Fla....
...(effective June 9, 2017).
4
We begin addressing the diametrically opposed positions with three
preliminary observations. First, immunity is granted statutorily in the
context of both deadly and non-deadly force. This is obvious because
section
776.032 requires that the use of force be permitted under either
sections
776.012,
776.013, or
776.031, and each of those sections
provides for the use of deadly and non-deadly force. See §§
776.032,
776.012,
776.013, and
776.031, Fla....
...“is not engaged in a criminal activity and is in a place where he or she has
a right to be.” See §
776.012, Fla. Stat. (2016). We conclude the
distinction in the duty to retreat in section
776.012 between deadly and
non-deadly force is imported into section
776.032 under the section
776.012(2) path for immunity....
CopyPublished | District Court of Appeal of Florida
rejected Stand Your Ground immunity claim. See §
776.032, Fla. Stat. (2022).
CopyPublished | Florida 2nd District Court of Appeal
...Tallahassee and Jonathan A. Hurley,
Assistant Attorney General, Tampa,
for Appellee.
LUCAS, Judge.
Tymothy Martin appeals his judgment and sentence for one count of
felony battery. Mr. Martin raises several issues on appeal. Because we hold that
section 776.032, Florida Statutes (2016), applies retroactively to his case, we reverse
and remand for the circuit court to convene a new "Stand Your Ground" hearing under
the statute as amended....
...The State charged Mr. Martin with one count of felony battery causing
great bodily harm, permanent disability, or permanent disfigurement under section
784.041(1), Florida Statutes (2016). Mr. Martin filed a motion to establish immunity
under section
776.032....
...their burden and I'll deny the motion." (Emphasis added.) Mr. Martin's case proceeded
to a jury trial, and he was convicted as charged.
Mr. Martin filed the present appeal, but while this appeal was pending, the
Florida Legislature amended section 776.032 to modify which party bears the burden of
proof in a self-defense immunity hearing. See ch. 2017-72, § 1, at 898-99, Laws of Fla.
-2-
(2017).1 The Florida Legislature's amendment to section 776.032 added the following
provision:
(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 immu...
...retroactively to pending proceedings. See Orlando v. Desjardins,
493 So. 2d 1027,
1028 (Fla. 1986). Whether a statutory amendment is characterized as substantive
versus procedural in nature becomes a critical determination for purposes of an
1When section
776.032 was enacted in October 2005, there was no
prescribed procedure that a trial court should employ when a defendant claimed
immunity under the statute. The Florida Supreme Court crafted a procedure in two
opinions. First, in Dennis v. State,
51 So. 3d 456, 463 (Fla. 2010), the supreme court
held that immunity under section
776.032 should be determined at a pretrial evidentiary
hearing....
...ng those on appeal from a lower
court."); Bowles v. Strickland,
151 F.2d 419, 420 (5th Cir. 1945) ("A suit in process of
appeal . . . is a pending suit."). So, too, we conclude that Mr. Martin's case was still
pending when the legislature amended section
776.032 by virtue of his appeal pending
before this court.
Adhering to stare decisis, we must hold that the June 9, 2017, amendment
to section
776.032 changing the burden of proof was procedural in nature....
...A redo under
these circumstances better serves all interests."). We therefore hold that Mr. Martin is
entitled to a new evidentiary hearing on remand.
C.
Because we are reversing and remanding for a new immunity hearing
under section 776.032, Mr....
...And here we
must pause to acknowledge that since Mr. Martin asserted a justifiable use of force
affirmative defense in his trial, the jury's verdict would seem to have addressed many, if
not all, of the issues underlying Mr. Martin's immunity claim. But section 776.032 is an
immunity statute....
...3d 852,
854 (Fla. 1st DCA 2015) ("Florida's Stand Your Ground law is intended to establish a
true immunity from charges and does not exist as merely an affirmative defense."); see
also Dennis v. State,
51 So. 3d 456, 462 (Fla. 2010) ("[S]ection
776.032 contemplates
that a defendant who establishes entitlement to the statutory immunity will not be
subjected to trial.")....
...If, on the other hand,
the circuit court determines that Mr. Martin is not entitled to immunity, the court shall
enter an order reflecting its findings and reinstate Mr. Martin's conviction. Id.
III.
We hold that the 2017 amendment to section 776.032, the Stand Your
Ground law, is procedural in nature and, therefore, retroactive in application; that, as
such, it applies to pending cases, including those on appeal; and that Mr....
...Having so held, we recognize that courts of other jurisdictions have
reached contrary conclusions as to whether a statutory amendment to a burden of proof
is procedural or substantive in nature. See supra n.4. We are also mindful of the fact
that applying section 776.032's amendment retroactively, as we have now held it must
be applied, could impact a significant number of criminal proceedings....
...Therefore,
- 11 -
pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v), we certify the
following question of great public importance to the Florida Supreme Court:
IS THE 2017 AMENDMENT TO SECTION 776.032 OF THE
FLORIDA STATUTES PROCEDURAL IN NATURE SUCH
THAT THE AMENDMENT SHOULD BE APPLIED
RETROACTIVELY TO CASES THAT WERE PENDING IN
FLORIDA COURTS AT THE TIME OF THE AMENDMENT’S...
CopyPublished | Florida 3rd District Court of Appeal
...Pro se petitioner Olaoluwa Ogunwale’s April 17, 2023 petition for writ
of prohibition seeks review of a September 8, 2021 trial court order denying
petitioner’s July 23, 2021 motion asserting immunity pursuant to Florida’s
Stand Your Ground law. See § 776.032, Fla....
CopyPublished | Court of Appeals for the Eleventh Circuit
...Penleys’ state law claims.
Under Florida law, “[a] person who uses force as permitted in §
776.012 . . .
is justified in using such force and is immune from criminal prosecution and civil
action for the use of such force.” Fla. Stat. §
776.032(1)....
CopyPublished | Florida 4th District Court of Appeal | 2014 WL 2197736, 2014 Fla. App. LEXIS 8078
...We therefore hold the error in excluding the fíancée’s testimony was not harmless and a new trial is required. Reversed and remanded. WARNER and CIKLIN, JJ„ concur. . The defense was based on section
776.013, Florida Statutes (2011). . The pretrial hearing was conducted pursuant to section
776.032, Florida Statutes (2011)....
CopyPublished | Florida 4th District Court of Appeal
...ant had the
burden to prove Stand Your Ground immunity by a preponderance of the
evidence. See Bretherick v. State,
170 So. 3d 766, 779 (Fla. 2015).
In 2017, before Elder’s Stand Your Ground immunity hearing took
place, the legislature amended section
776.032, Florida Statutes, by
adding subsection (4), which altered the burden of proof at Stand Your
Ground immunity hearings. See Ch. 2017-72, § 1, Laws of Fla.
Section
776.032(4) now provides that “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 State. §
776.032(4), Fla....
...The court ruled that
Elder “did not meet his burden by the greater weight or preponderance of
credible evidence.” The trial court found that the victim’s girlfriend’s
testimony was more believable than that of Elder.
Significantly for this case, the court further ruled that even if the most
recent version of section 776.032(4) were “retroactively applied to put the
burden on the State,” the State still met its burden.
Elder argues that because he improperly bore the burden of proof at
his pretrial Stand Your Ground hearing, we should remand for a...
...hearing where the State would bear that burden of proof.
-7-
Discussion
Recently, in Love v. State,
286 So. 3d 177, 190 (Fla. 2019), the Florida
Supreme Court held that “[s]ection
776.032(4) is a procedural change in
the law and applies to all Stand Your Ground immunity hearings
conducted on or after the statute’s effective date.”
Under Love, section
776.032(4) should have been applied to Elder’s
Stand Your Ground immunity hearing, which was conducted after the
statute’s effective date....
CopyPublished | Supreme Court of Florida | 36 Fla. L. Weekly Supp. 220, 2011 Fla. LEXIS 1247, 2011 WL 2061931
...Const.; Jollie v. State,
405 So.2d 418 (Fla.1981). We stayed proceedings in this case pending disposition of Dennis v. State,
51 So.3d 456 (Fla.2010), in which we determined that where a criminal defendant files a motion to dismiss on the basis of section
776.032, Florida Statutes (2006), the trial court should decide the factual question of the applicability of the statutory immunity....
CopyPublished | Florida 4th District Court of Appeal
...e as a matter of law.
Moreover, Burns had a lawful right to openly carry his firearm on his home
property. Thus, Burns is entitled to immunity from prosecution for his
non-deadly use of his firearm during the incident with the tree-cutting
crew. See § 776.032(1), Fla....
CopyPublished | Florida 3rd District Court of Appeal
...Before EMAS, LOGUE and LINDSEY, JJ.
PER CURIAM.
Justin Bailey petitions this court for a writ of prohibition to quash the trial
court’s December 2016 order denying his motion for immunity under Florida’s
Stand Your Ground law, section 776.032, Florida Statutes (2016), following an
evidentiary hearing....
...of proof, requiring him to establish his entitlement to statutory immunity by a
preponderance of the evidence. The trial court concluded in its order that Bailey
“failed to prove by the preponderance of the evidence that he is immune from
prosecution pursuant to §
776.032 and §
776.012.” The instant petition followed.
While the petition was pending in this court, the Florida Legislature
amended section
776.032(4)....
...entitlement to self-defense immunity, the burden of proof is upon the State to
overcome that immunity claim, which the State must do by a standard of clear and
convincing evidence.1 The Legislature provided that “[t]his act shall take effect
1 See §776.032(4), Fla....
...inter alia, whether these statutory amendments are retroactively applicable to the
instant case.2 Since that time, this court has answered the question of retroactive
application in our recent decision of Love v. State, No. 3D17-2112 (Fla. 3d DCA
May 11, 2018). Therein, we held that section 776.032(4) does not apply to a crime
alleged to have been committed before June 9, 2017, the effective date of the
statute....
...s thorough and
thoughtful order denying Bailey’s immunity motion, we conclude the trial court’s
factual determinations are supported by competent substantial evidence and that
2 Neither the State nor Bailey contends that the 2017 amendment to section
776.032(4) is unconstitutional.
3
the trial court committed no error in its legal determinations....
CopyPublished | Florida 3rd District Court of Appeal
...Before SCALES, MILLER and LOBREE, JJ.
PER CURIAM.
Nicol Maslo seeks certiorari review of a March 11, 2024 trial court order
denying, as legally insufficient, his motion to dismiss asserting immunity from
criminal prosecution under sections
776.012(1) and
776.032(1) of the Florida
Statutes (2024) – Florida’s “Stand Your Ground” (SYG) law.1 We deny the
petition because Maslo’s SYG motion failed to establish a prima facie claim
of self-defense immunity.
1
Section
776.012(1) provides a...
...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.
§
776.012(1), Fla. Stat. (2024).
Section
776.032(1) provides, in relevant part, as follows:
(1) A person who uses or threatens to use force as permitted in
s....
...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.
§ 776.032(1), Fla....
...ployed certiorari review of
the order. See, e.g. Acostafigueroa v. State,
373 So. 3d 908, 910 (Fla. 4th
DCA 2023) (“A petition for writ of certiorari is the proper vehicle to seek relief
from an order striking as untimely a motion to dismiss under section
776.032.”); Corbett v....
...presents a question of law that this Court reviews de novo. See Moore,
337
So. 3d at 880.
4
argument in support of that motion at a pretrial immunity hearing.” Moore,
337 So. 3d at 880-81 (quoting Jefferson,
264 So. 3d at 1028-29). Section
776.032(4) of the Florida Statutes (2024), governing “[i]mmunity from
criminal prosecution ....
CopyPublished | Florida 3rd District Court of Appeal
...Jeffrey R. Geldens, Assistant
Attorney General, for respondent.
Before SUAREZ, EMAS, and FERNANDEZ, JJ.
SUAREZ, J.
Defendant James Arauz appeals1 the denial of his motion to dismiss the
criminal charges against him based on sections 776.032 and 776.12, Florida
Statutes (2009), commonly called the “Stand Your Ground” law....
...Therefore, we deny the petition for
writ of prohibition.
Arauz was charged with second degree murder for stabbing the victim
several times.2 Arauz does not deny that he stabbed the victim. Rather, he claims
that he is immune from criminal prosecution pursuant to Section 776.032 because
he believed the force he used was necessary to prevent the imminent commission
of a forcible felony, specifically a sexual battery,3 by the victim.
When a defendant files a motion to dismiss based upon the Stand Your...
...as a “forcible felony” for purposes of the Stand Your Ground law.
2
factual evidence presented. Dennis v. State,
51 So. 3d 456, 458 (Fla. 2010) (“We
conclude that where a criminal defendant files a motion to dismiss on the basis of
section
776.032, the trial court should decide the factual question of the
applicability of the statutory immunity.”)....
CopyPublished | Florida 6th District Court of Appeal
...for Polk County.
May 2, 2025
WOZNIAK, J.
Demond Lavette Moore petitions for a writ of prohibition to prevent his
prosecution for second-degree murder. 1 Moore alleges that he has immunity under
section 776.032, Florida Statutes (2023), Florida’s Stand Your Ground law....
...successfully established a prima facie claim of self-defense immunity. We agree. At
that point, the burden shifted to the State to prove, by clear and convincing evidence,
2
that Moore was not entitled to self-defense immunity. See § 776.032(4), Fla....
...Notably, [Moore]
failed to present any evidence to establish that he reasonably
believed that his use of force was necessary to prevent
imminent death or great bodily harm to himself.
We turn now to explain why we grant Moore’s Petition.
Section 776.032(1) provides that “[a] person who uses ....
...mmission of a
forcible felony.
6
If a defendant raises a prima facie claim of self-defense immunity, then the State
bears the burden to overcome that claim by clear and convincing evidence. §
776.032(4), Fla....
CopyPublished | Florida 5th District Court of Appeal
...Pallas, Jr.,
Assistant Attorney General, Daytona
Beach, for Respondent.
PER CURIAM
Petitioner, Meagan Corbett, charged with one count of simple battery,
filed a motion in county court seeking to dismiss that charge based on
Florida’s Stand Your Ground immunity, section 776.032, Florida Statutes
(2021)....
...munity, then prohibition is not the
appropriate remedy. See Rich v. State,
311 So. 3d 126, 130 (Fla. 2d DCA
2020) (“Recently, our court expanded the circumstances in which immunity
3
claim rulings under section
776.032 may alternatively be considered in
certiorari ....
...e
alleged error.”); Figueroa v. State,
247 So. 3d 451 (Fla. 2d DCA 2018)
(treating petition for writ of prohibition as petition for writ of certiorari and
granting because trial court departed from essential requirements of law by
not applying section
776.032, Florida Statutes (2017)).
The Third and First Districts have also issued recent opinions in which
the courts addressed Stand Your Ground procedural errors in petitions for
writ of certiorari....
...6
are ambiguous as to what burden it applied when “weighing all the evidence,”
this Court cannot determine the merits of the immunity decision. The relief
Corbett seeks is another hearing as required by section 776.032....
CopyPublished | Florida 2nd District Court of Appeal
...Manley with one count of
second-degree murder with a firearm and two counts of aggravated battery with a
firearm. Manley unsuccessfully moved to dismiss the information, claiming immunity
from prosecution under Florida’s Stand Your Ground law, section 776.032, Florida
Statutes (2013). He was tried before a jury in 2016 and found guilty of all three
charges. Manley has appealed the resulting judgment and sentences, arguing among
other things that the 2017 amendment to section 776.032, see ch....
...the trial court should
reconsider his immunity claim in light of that amendment.
In Martin v. State, 43 Fla. L. Weekly D1016, D1017 (Fla. 2d DCA May 4,
2018), review pending, No. SC18-789, this court held that the 2017 amendment to
section 776.032 applies retroactively to pending cases....
...If the court determines that Manley is not entitled to immunity, it shall enter an
order so reflecting and reinstate Manley’s conviction and sentences. See id. We find
no merit to the other issues raised in Manley’s appeal.
The Third and Fourth District Courts of Appeal have held that section
776.032, as amended, does not apply retroactively to pending cases....
CopyPublished | Florida 2nd District Court of Appeal
...Manley with one count of
second-degree murder with a firearm and two counts of aggravated battery with a
firearm. Manley unsuccessfully moved to dismiss the information, claiming immunity
from prosecution under Florida’s Stand Your Ground law, section 776.032, Florida
Statutes (2013). He was tried before a jury in 2016 and found guilty of all three
charges. Manley has appealed the resulting judgment and sentences, arguing among
other things that the 2017 amendment to section 776.032, see ch....
...the trial court should
reconsider his immunity claim in light of that amendment.
In Martin v. State, 43 Fla. L. Weekly D1016, D1017 (Fla. 2d DCA May 4,
2018), review pending, No. SC18-789, this court held that the 2017 amendment to
section 776.032 applies retroactively to pending cases....
...If the court determines that Manley is not entitled to immunity, it shall enter an
order so reflecting and reinstate Manley’s conviction and sentences. See id. We find
no merit to the other issues raised in Manley’s appeal.
The Third and Fourth District Courts of Appeal have held that section
776.032, as amended, does not apply retroactively to pending cases....
CopyPublished | Supreme Court of Florida
...Rule 9.130(a)(3) lists nonfinal orders that may be appealed
-2-
in civil proceedings. New subdivision (a)(3)(F)(iv) adds an entry to
that list, allowing civil defendants to appeal nonfinal orders that
deny claims of immunity brought under section 776.032, Florida
Statutes (2024), known as Florida’s Stand Your Ground law....
...(ii) asserts entitlement to immunity under
section
768.28(9), Florida Statutes; or
(iii) asserts entitlement to sovereign
immunity; or
(iv) asserts entitlement to immunity under
section
776.032, Florida Statutes;
(G) – (I) [No Change]
(4) [No Change]
(5) Orders entered on an authorized and timely motion
for relief from judgment are reviewable by the method prescribed by
this rule....
CopyPublished | Florida 6th District Court of Appeal
deadly force and that, resultingly, under section
776.032(1), Florida Statutes, they were immune from
CopyPublished | Florida 4th District Court of Appeal
...He
raises two issues, both of which we find to be without merit. We write to
address Rivera’s argument that he is entitled to a new Stand Your Ground
Law hearing, 1 as the controlling statute was amended after the hearing,
and it now provides that once a defendant makes out a prima facie case
1 Section 776.032, Florida Statutes, also known as Florida’s Stand Your Ground
Law, “provides for immunity from prosecution when a defendant has used force
in accordance with certain specified statutory circumstances.” Bretherick v.
State, 170 So....
...e application
is pending in the Florida Supreme Court.
After Rivera was charged with numerous offenses arising out of his
shooting a firearm and using it to beat one of the victims, he moved to
dismiss based on Florida’s Stand Your Ground Law, section 776.032,
Florida Statutes....
...It provides that “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.” § 776.032(4), Fla....
CopyPublished | Florida 3rd District Court of Appeal
...econd-
degree murder and, alternatively, a writ of certiorari quashing two evidentiary
rulings. 1 In the prohibition aspect of the petition, Hoempler contends he is
immune from prosecution pursuant to Florida’s “Stand Your Ground” law,
see section 776.032, Florida Statutes (2023), while in the certiorari portion,
he claims the trial court departed from the essential requirements of law in
refusing to admit a 911 recording into evidence and allowing testimony
regarding an incident immediately preceding the homicides....
...,
following a struggle that began in his front yard. All three victims were
unarmed at the time and succumbed to multiple gunshot wounds. After he
was charged, Hoempler filed a motion to dismiss asserting immunity from
prosecution under sections
776.032 and
776.012, Florida Statutes (2023).
1
Hoempler has since been indicted for the first-degree murder of Hector
Rivera.
2
The trial court conducted a two-day hearing on the motion....
...l, (2)
results in material injury for the remainder of the case, and (3) departs from
the essential requirements of law.” A.H. v. Dep’t of Child. & Fams.,
277 So.
3d 704, 707 (Fla. 3d DCA 2019).
B
Section
776.032(1) provides in pertinent part, “A person who uses or
threatens to use force as permitted in s....
...se the deadly force is not
engaged in a criminal activity and is in a place where he or she
has a right to be.
The State bears the burden of overcoming a prima facie claim of Stand Your
Ground immunity by clear and convincing evidence. § 776.032(4), Fla....
CopyPublished | Florida 3rd District Court of Appeal
...EMAS, J.
I. INTRODUCTION
The State appeals from an order granting the motion of defendant,
Gary Charles Moore, II, to dismiss criminal charges against him based upon
self-defense immunity conferred by Florida’s Stand Your Ground law,
section 776.032, Florida Statutes (2016).
We reverse and remand the cause for reinstatement of the criminal
charges, because defendant’s motion failed to meet the threshold pleading
requirement for raising a prima facie claim of self-defense immunity.
II....
...of Jonathan Stevens, alleging Moore shot and killed Stevens with a shotgun
on December 23, 2016. On August 22, 2018, Moore filed a motion entitled
“Motion to Dismiss Based on Statutory Immunity” alleging that Moore acted
in self-defense in shooting and killing Stevens. Section 776.032, entitled
“Immunity from criminal prosecution and civil action for justifiable use or
threatened use of force” provides in pertinent part:
(1) A person who uses or threatens to use force as permitted
in s....
...agraphs contained in
Moore’s motion are set forth below. Emphasis has been added to those
portions most relevant to a determination of whether Moore has alleged
sufficient facts to raise a prima facie claim of self-defense immunity pursuant
to section 776.032(4), thereby shifting the burden to the State to establish,
by clear and convincing evidence, that Moore is not entitled to self-defense
immunity from criminal prosecution for shooting and killing Jonathan
Stevens.
The Allegations in Defendant’s Motion to Dismiss
1....
...3d 1019 (Fla. 2d DCA 2018).
7
objected and moved to strike the motion because it failed to contain sufficient
allegations to meet the threshold requirement for raising a prima facie claim
of immunity under section 776.032(4) (providing: “[O]nce 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 s...
...Espinosa,
264 So. 3d 1055 (Fla. 3d DCA 2019).
The first step in seeking dismissal based on self-defense immunity requires
that “a prima facie claim of self-defense immunity from criminal prosecution
has been raised by the defendant.” §
776.032(4), Fla....
...3.190(b) and present argument in support of that motion at a pretrial
immunity hearing.” Id. at 1028-29. See also Langel v. State,
255 So. 3d
359, 362 (Fla. 4th DCA 2018) (“To raise a ‘prima facie claim of self-defense
immunity from criminal prosecution’ under section
776.032(4), a defendant
must show that the elements for the justifiable use of force are met.”)
Section
776.012(2), Florida Statutes (2016) (“Use or threatened use of
force in defense of person”) provides:...
...relevant action by Moore (shooting Stevens in the abdomen with a shotgun).
IV. CONCLUSION
The allegations in Moore’s motion were legally insufficient to raise “a
prima facie claim of self-defense immunity from criminal prosecution” under
section 776.032(4)....
CopyPublished | Florida 3rd District Court of Appeal
...shooting or throwing a deadly missile, after an altercation with his neighbor,
Jose Camacho, during which Defendant shot Camacho.
Defendant filed a motion to dismiss, and an affidavit in support,
asserting he was immune from prosecution under section
776.032 and
776.012, Florida Statutes (2021) (Florida’s Stand Your Ground law).
Defendant declared the shooting was justified because he reasonably
believed it was necessary to prevent imminent death or great bodily harm to
himself....
...did not meet the statutory standard for self-defense immunity. State v. Vino,
100 So. 3d 716 (Fla. 3d DCA 2012); Derossett v. State,
294 So. 3d 984 (Fla.
5th DCA 2020); Bouie v. State,
292 So. 3d 471 (Fla. 2d DCA 2020).
ANALYSIS AND DISCUSSION
Section
776.032, Florida Statutes (2020) provides in pertinent part:
(1) A person who uses or threatens to use force as permitted in
s....
...factual findings are supported by competent substantial evidence, and we
hold that the trial court properly applied the relevant provisions of the Stand
Your Ground law in concluding that the State failed to meet its burden to
overcome Defendant’s self-defense immunity. See § 776.032(4), Fla....
...3d at 474 (recognizing that “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”) (quoting § 776.032(4), Fla....
CopyPublished | Florida 2nd District Court of Appeal
...A jury found Thomas L. Tillman guilty of attempted second-degree murder
with a firearm. See §§
782.04(2),
777.04(1), (4)(c),
775.087(1)(b), Fla. Stat. (2015). On
appeal from the judgment, Tillman argues, among other things, that the 2017
amendment to section
776.032, Florida Statutes, see ch....
...amendment, the trial court should reconsider his motion to dismiss the information
based on that statute.
As we did in Martin v. State, 43 Fla. L. Weekly D1016, D1017 (Fla. 2d
DCA May 4, 2018), review pending, No. SC18-789, we hold that the 2017 amendment
to section 776.032 is procedural in nature and is retroactively applicable to pending
cases....
...reflecting and reinstate Tillman's
conviction and sentence. See id. We affirm without comment with regard to the
remaining issues that Tillman has raised in this appeal.
The Third and Fourth District Courts of Appeal have held that section
776.032, as amended, does not apply retroactively in pending cases, and we therefore
certify conflict with Hight v....
CopyPublished | Florida 2nd District Court of Appeal
...A jury found Thomas L. Tillman guilty of attempted second-degree murder
with a firearm. See §§
782.04(2),
777.04(1), (4)(c),
775.087(1)(b), Fla. Stat. (2015). On
appeal from the judgment, Tillman argues, among other things, that the 2017
amendment to section
776.032, Florida Statutes, see ch....
CopyPublished | Florida 4th District Court of Appeal
...residential property. He
raises two issues, both of which we find to be without merit. We write to
address Rivera’s argument that he is entitled to a new Stand Your Ground
Law hearing, 1 as the controlling statute was amended after the hearing,
1 Section 776.032, Florida Statutes, also known as Florida’s Stand Your Ground
Law, “provides for immunity from prosecution when a defendant has used force
in accordance with certain specified statutory circumstances.” Bretherick v.
State, 170 So....
...3d at 775. Based on Love,
286
So. 3d 177, we affirm.
After Rivera was charged with numerous offenses arising out of his
shooting a firearm and using it to beat one of the victims, he moved to
dismiss based on Florida’s Stand Your Ground Law, section
776.032,
Florida Statutes (2016)....
...It provides that “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.” § 776.032(4), Fla. Stat. (2017); Ch. 2017-72, § 1,
Laws of Fla. Rivera seeks retroactive application of this amendment.
In Love, the supreme court considered the retroactive application of
section 776.032(4) to pending cases involving criminal conduct alleged to
have occurred prior to the effective date of the statute....
...at the applicability of such
provisions ordinarily depends on the posture of the particular
case.
Id. at 187-88 (emphasis in original) (quoting Landgraf v. USI Film Products,
511 U.S. 244, 275 n.29 (1994)). The court concluded that “section
776.032(4) was intended to and does apply in this ‘commonsense’ and
‘ordinar[y]’ manner,” meaning that it “applies to those immunity hearings,
including in pending cases, that take place on or after the statute’s
effective date.” Id. at 188 (alteration in original). The court summed up:
“Section
776.032(4) is a procedural change in the law and applies to all
Stand Your Ground immunity hearings conducted on or after the statute’s
effective date.” Id. at 190. 2
This court has concluded that section
776.032(4) is substantive and
does not apply retroactively....
...cases where immunity hearings occur on or after the statute’s effective date. Id.
at 189. The constitutional provision is not at issue in Rivera’s appeal.
3
Based on the supreme court’s holding that section 776.032(4) is a
procedural change that applies to all Stand Your Ground hearings
conducted on or after its effective date, and in light of the fact that Rivera’s
Stand Your Ground hearing occurred before the amended statute’s
effective da...
CopyPublished | District Court of Appeal of Florida
There, the Second District concluded that section
776.032(4) merely requires that “a prima facie claim
CopyPublished | Florida 4th District Court of Appeal
...Sorraya M.
Solages-Jones, Assistant Attorney General, West Palm Beach, for
respondent.
PER CURIAM.
In this petition for writ of mandamus, the petitioner seeks review of an
order striking his motion to dismiss asserting a claim of immunity under
section 776.032, Florida Statutes, as untimely under Florida Rule of
Criminal Procedure 3.190(c)....
CopyPublished | Florida 3rd District Court of Appeal
...On Motion to Dismiss
By petition for writ of prohibition, Steven Bembridge seeks to restrain
the trial court from conducting a trial before it entertains an evidentiary
hearing on his motion to dismiss filed pursuant to section 776.032, Florida
Statutes (2022)....
...Rather, a petition for writ of certiorari
would have been the proper vehicle to seek review of the trial court’s ruling.
See Conover v. State,
346 So. 3d 56, 56–57 (Fla. 4th DCA 2022); see, e.g.,
Penalver v. State,
338 So. 3d 990 (Fla. 3d DCA 2022) (reviewing by petition
for writ of certiorari order dismissing section
776.032 motion to dismiss based
on trial court’s conclusion that motion was not sworn and did not rely on
record evidence by certiorari); Acostafigueroa v....
CopyPublished | Florida 4th District Court of Appeal
...same circumstances would have used the same force as Martin.
Background
The State charged Martin with battery on a person over 65 years of age.
Martin filed a motion to dismiss seeking immunity under Florida’s Stand
Your Ground law, section 776.032, Florida Statutes (2023), based upon a
claim that he acted in self-defense....
...The trial court’s application of the law
to the historical facts and its legal conclusions, however, are reviewed de
novo. Id. This includes the trial court’s ultimate conclusion of whether
the use of force was justified under the facts. Bouie v. State,
292 So. 3d
471, 479–80 (Fla. 2d DCA 2020).
Section
776.032(1), Florida Statutes (2023), affords immunity to
individuals using force in defense of their person as permitted by section
776.012, Florida Statutes....
...State,
286 So. 3d 348, 351 (Fla. 2d DCA 2019)).
If a defendant raises a prima facie claim of self-defense immunity, as
the trial court determined was done here, the burden shifts to the State to
overcome immunity by clear and convincing evidence. §
776.032(4), Fla.
Stat....
CopyPublished | Florida 2nd District Court of Appeal | 2016 Fla. App. LEXIS 9965, 2016 WL 3541019
NORTHCUTT, Judge. Nirav C. Patel has petitioned for a writ of prohibition to prevent the circuit court from proceeding in a civil action against him. He claims immunity from the suit under Florida’s so-called Stand Your Ground .law, section 776.032(1), Florida Statutes (2008)....
...Patel,
132 So.3d 234 (Fla. 2d DCA 2014) (table decision). While the criminal case was pending, Kumar filed a lawsuit against Patel seeking damages for battery and negligence. Patel answered and asserted as an affirmative defense his immunity from civil actions under section
776.032(1)....
...The legislature enacted the Stand Your Ground law in 2005, substantially altering the law governing justifiable use of force by abrogating the common law duty to retreat before resorting to deadly force in self defense. At the same time, the lawmakers enacted section 776.032, granting immunity to those who lawfully use force in self-defense. Ch. 2005-27, § 4, at 200-02, Laws of Fla. In pertinent part, section 776.032 1 provides: (1) A person who uses force as permitted in s....
...‘that a statute should be construed so as to ascertain and give effect to the intention of the Legislature as *472 expressed in the statute.”’ Id. at 461 (quoting Reeves v. State,
957 So.2d 626, 629 (Fla.2007)). It noted that the preamble to the law creating section
776.032 states: “ ‘[T]he Legislature finds that it is proper for law-abiding people to protect themselves, their families, and others from intruders and attackers without fear of prosecution or civil action for acting in defense of themselves and others.’ ” Id. at 462 (quoting ch. 2005-27, at 200). Considering also that “[statutory enactments are to be interpreted so as to accomplish rather than defeat their purpose,” the court concluded that section
776.032 does not merely provide a defendant an affirmative defense to being convicted for using lawful force....
...Further, according to the statute’s plain language, the immunity arises in the instant that lawful force is employed; the statute declares that a person' who uses force in accordance with the law “is justified” in doing so and “is immune.” § 776.032(1) (emphasis added)....
...on that conduct. The immunity does not depend on the manner by which it is invoked; the legislature prescribed hone. Neither does it depend on the procedural mechanism devised by the courts for discerning it, as in Dennis . The immunity conferred by section 776.032 is a status that shields the actor against criminal and civil repercussions from the moment he or she employs lawful force....
...e of that issue in a civil action brought by a non-party to the criminal case. Id. at 529-30 . But then the court acknowledged that just the opposite is true: And while such a reading might be implied from some language in subsections (1) and (3) of
776.032, given the well-established jurisprudence that stat *475 utes should be construed strictly and in a manner such that “no change, in the common law can be said to be legislatively intended unless the statute speaks plainly in such regard or cannot otherwise be given effect,” we decline to infer such an intent. Fullerton v. Fla. Med. Ass’n, Inc.
938 So.2d 587, 592 (Fla. 1st DCA 2006). Id. (emphasis added) (footnote omitted). Significantly, the Flemmings court supported this last observation with a citation to a civil case. But section
776.032 is part of the Florida Criminal Code....
...ial doctrine). This statute does not expressly abrogate any aspect of those affirmative defenses because, unlike the other provisions' to which the Flemmings opinion compared it, this statute is not concerned simply with precluding claims or issues. Section 776.032 affords a substantive right to immunity from criminal prosecutions and civil actions altogether....
...h the decision of the Third District Court of Appeal in Professional Roofing & Sales, Inc. v. Flemmings,
138 So.3d 524 (Fla. 3d DCA 2014). Petition granted; conflict certified. WALLACE, J., Concurs. BADALAMENTI, Judge, Concurring with opinion. . Section
776.032 was amended effective June 17, 2014, to provide immunity to those who use or threaten to use force as permitted in sections
776.012,
776.013, or
776.031....
CopyPublished | Florida 5th District Court of Appeal
...The trial
court rejected his argument, but this Court reversed that ruling on
appeal, remanding for a new self-defense hearing. Boutiette v.
State (Boutiette I),
281 So. 3d 572, 572 (Fla. 5th DCA 2019).
On remand, the trial court conducted a new evidentiary
hearing and applied the new standard pursuant to section
776.032(4), Florida Statutes (2017), concluding that the State
failed to demonstrate by clear and convincing evidence that
Boutiette was not entitled to self-defense immunity....
CopyPublished | Florida 6th District Court of Appeal
...Smith got up and ran back to his
house. Moore survived the gunshot wound.
The State filed an Information charging Smith with aggravated battery with a
firearm resulting in great bodily harm. Smith pled not guilty and subsequently filed
a motion to dismiss under Section 776.032(1), Florida Statutes (2017), asserting that
he was justified in his use of force and was, therefore, immune from prosecution.
Delgado testified at the hearing on the motion and was asked if anyone was
“threatening to break [Smith...
CopyPublished | Florida 6th District Court of Appeal
...Smith got up and ran back to his
house. Moore survived the gunshot wound.
The State filed an Information charging Smith with aggravated battery with a
firearm resulting in great bodily harm. Smith pled not guilty and subsequently filed
a motion to dismiss under Section 776.032(1), Florida Statutes (2017), asserting that
he was justified in his use of force and was, therefore, immune from prosecution.
Delgado testified at the hearing on the motion and was asked if anyone was
“threatening to break [Smith...
CopyPublished | Florida 3rd District Court of Appeal
...Rules Committee. On the
merits, we deny Nadell’s petition because competent, substantial evidence
supports the trial court’s determination that Nadell is not entitled to SYG
immunity.
I. RELEVANT FACTS AND PROCEDURAL BACKGROUND
1
Section
776.032(1) of the Florida Statutes (2018) provides, in relevant part,
that “[a] person who uses or threatens to use force as permitted in s.
776.012, s....
...at in Key West, Florida. In his
responsive pleading, Nadell alleges, as an affirmative defense, that he is
immune from civil liability under SYG. On April 14, 2022, Nadell filed his
Motion for Order Granting Statutory Civil Immunity Pursuant to F.S. 776.032
(“SYG Motion”) in which Nadell seeks dismissal of Hursey’s amended
complaint....
...of an order summarily denying their motion to dismiss a civil action under
SYG as a petition for writ of prohibition. In reaching its decision, the
Flemmings court concluded that the appropriate procedure for determining
a civil immunity claim under section 776.032 is the same as that employed
by the courts in the criminal context....
CopyPublished | Florida 4th District Court of Appeal
...The trial court denied Appellant’s amended motion to dismiss.
Well after the trial in this case, we decided State v. Cassaday, 46 Fla.
L. Weekly D544,
2021 WL 926552, at *1 (Fla. 4th DCA Mar. 10, 2021).
There, we agreed with the Second District’s analysis in Jefferson that
“section
776.032(4) merely requires that ‘a prima facie claim of self-defense
immunity from criminal prosecution ....
...3d 396, 407 (Fla. 4th DCA 2020) (quoting Boston v. State,
296 So. 3d 580, 583 (Fla. 1st DCA 2020), rev. granted, SC20-1164,
2020
WL 5946341 (Fla. Oct. 7, 2020)); contra Nelson v. State,
295 So. 3d 307,
307 (Fla. 2d DCA 2020) (holding that because the amended section
776.032 “shift[ed] the burden of proof from the defendant to the State,”
the case is reversed and remanded to the trial court for a new immunity
hearing)....
CopyPublished | Florida 1st District Court of Appeal
...imminent death or great bodily harm to himself or herself
or another or to prevent the imminent commission of a
forcible felony. . . .
Because Smith used the force permitted by this statute, he was
“justified in such conduct and is immune from criminal
prosecution.” § 776.032(1), Fla....
...2016) (explaining
that the standard jury instruction that pertains to section
776.041(2)(a) “accurately communicate[s] the law to the jury” as
an exception the initial aggressor may use to claim immunity).
Section
776.041, in turn, does not foreclose Smith’s entitlement to
immunity.
Section
776.032(4), Florida Statutes, provides that, “[i]n 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
c...
CopyPublished | Florida 1st District Court of Appeal
...Petition for Writ of Prohibition—Original Jurisdiction.
June 12, 2019
WINOKUR, J.
William H. Fletcher seeks a writ of prohibition, claiming that
the trial court erred in denying him immunity from prosecution
under section 776.032, Florida Statutes....
...We grant the petition.
I.
Fletcher was charged with one count of aggravated battery
with a firearm, alleging that he shot the victim, Randy Parker, in
the leg. Fletcher moved to dismiss the charge, asserting
immunity from prosecution pursuant to section 776.032, Florida
Statutes, the “Stand Your Ground” law.
During the immunity hearing, Fletcher, a bail bondsman
with a concealed weapons permit, testified that the shooting
constituted justifiable use of force....
...The trial court’s factual
findings must be supported by competent substantial evidence.
Id. Legal conclusions, however, are reviewed de novo. Id.
Florida’s Stand Your Ground law confers immunity from
prosecution if an individual uses deadly force in accordance with
section
776.012(2), Florida Statutes. §
776.032(1), Fla....
...Parker’s driveway, Fletcher was on the public sidewalk and
1 In 2017, the Legislature amended the Stand Your Ground
statute, putting the burden of proof on the State to prove that a
defendant is not entitled to immunity by clear and convincing
evidence. § 776.032(4), Fla....
CopyPublished | Florida 1st District Court of Appeal
...With regards to the first issue, we find no
reversible error. With regards to the second issue, the appellant
makes two arguments, one of which was not properly preserved.
At trial, the appellant essentially argued that the trial court
needed to determine whether section 776.032(4) applied
retroactively....
...address the issue of the defendant’s argument that he is entitled
to a new self-defense immunity hearing. This Court has adopted
the position that a defendant is entitled to a new self-defense
immunity hearing when the trial court incorrectly applies section
776.032, Florida Statutes....
...ght to self-defense. Ch. 2005-
27, § 4, Laws of Fla.
Immunity from prosecution, the key issue in this case, was
created by adding a new section to chapter 776, Florida Statutes,
which reads as follows:
3
776.032 Immunity from Criminal prosecution and civil
action for justifiable use of force....
...civil action for
the use of such force[.]
Sections
776.012,
776.013, and
776.031 are the general self-
defense statutes that may be asserted at trial and would have only
been allowed to be asserted at trial without the immunity provided
by section
776.032....
...er because
the immunity applies to all self-defense cases, not just ones in
which standing one’s ground is an element. That is why a better
label is “self-defense immunity.” In fact, the statutes refer to it as
“self-defense immunity.” See § 776.032(4), Fla....
....” The important thing to
remember for our analysis is that the entire purpose of this
immunity is to provide a mechanism by which a person who is
asserting lawful self-defense may have the defense heard early in
the process to avoid the time and expense of a trial.
Until 2017, section 776.032 did not specify how this immunity
from arrest, detention, charging, or prosecution was to be
effectuated....
...subjected to a trial when that defendant would be entitled
to acquittal at trial on the basis of a Stand Your Ground
defense.
Id. at 780.
Chapter 2017-72, Laws of Florida
Subsequent to Bretherick, the Legislature added another
subsection to section 776.032:
(4) In a criminal prosecution, once a prima facie claim of
self-defense immunity from criminal prosecution has
been raised by the defendant in a pretrial immunity
hearing, the burden of proof by clear and convincing...
...corrects the error of the Bretherick decision.” Fla. Sen. Comm. on
Rules, recording of proceedings (Feb. 9, 2017) (Tallahassee)
(Statement of Sen. Rob Bradley)
(https//thefloridachannel.org/videos/2917-senate-rules-
committee/).
Since section 776.032(4) was enacted, the district courts have
been split on whether subsection four applies to crimes committed
prior to its adoption....
...t, after a showing of
a prima facie claim of self-defense, did not act in lawful self-
defense. At trial, the finder of fact has always applied the correct
standard whether our state courts were operating under
Bretherick or the subsequently enacted section 776.032(4)....
...State,
121 So. 3d 462, 492 (Fla. 2013).
On appeal, the defendant argues that because the trial court
stated the defendant’s self-defense claim was a question for the
jury, the trial court failed to apply the correct standard of proof
under section
776.032....
CopyPublished | Florida 1st District Court of Appeal
...d guilty to
aggravated battery with a deadly weapon, along with possession of
a firearm by a convicted felon. He got seven years.
In 2017, after Hicks initiated this appeal but before he filed
his initial brief, the Florida Legislature amended section 776.032,
Florida Statutes, which governs SYG immunity. Under the
amended provision, once a criminal defendant raises “a prima facie
claim of self-defense immunity,” then “the burden of proof by clear
and convincing evidence is on the party seeking to overcome the
immunity.” Id. § 776.032(4)....
...We and other courts
have exercised jurisdiction in this procedural posture and granted
new immunity hearings to litigants in Hicks’s position post-plea.
The majority nevertheless denies Hicks this relief by viewing his
appeal narrowly as seeking only our legal ruling on retroactive
application of the 2017 amendments to section 776.032(4), Florida
Statutes¸ and not directly seeking our case-dispositive ruling on
the underlying issue of immunity under the amended statute—
which we cannot do until after the lower tribunal applies the new
statute in the first instance, which creates a closed loop from which
Hicks cannot escape....
...where the parties contemplated an end to prosecution regardless
of the outcome of this appeal.
Consistent with Commander, we should reverse Appellant’s
judgment and sentence, and remand for a new stand-your-ground
immunity hearing at which the State has the burden of proof under
section 776.032(4)....
CopyPublished | Florida 1st District Court of Appeal
...with intent to sell, and one count of possession of drug paraphernalia all arising out
of an incident on July 6, 2011. In 2013, the petitioner filed a motion to dismiss the
attempted murder charges, claiming immunity from prosecution under Florida’s
Stand Your Ground law, section 776.032, Florida Statutes (2011)....
...3 We
disagree.
Florida’s Stand Your Ground law is intended to establish a true immunity
from charges and does not exist as merely an affirmative defense. See Peterson v.
State,
983 So. 2d 27, 29 (Fla. 1st DCA 2008). The procedure for raising immunity
under section
776.032 is to file a pretrial motion to dismiss under Florida Rule of
Criminal Procedure 3.190(b)....
CopyPublished | Florida 1st District Court of Appeal
...July 9, 2018
PER CURIAM.
Bryant Commander was charged with aggravated assault
with a firearm based on an incident that occurred in a Walmart
parking lot in November 2016. He filed a motion to dismiss the
charges under the Stand Your Ground law (§ 776.032, Fla....
...burden to prove that Commander was not immune from
prosecution under the Stand Your Ground law.
We accept the state’s concession of error because it is
supported by the record and is consistent with the statute in
effect at the time of the evidentiary hearing. See § 776.032(4),
Fla....
...troactively).
Accordingly, we grant the petition, quash the order denying
Commander’s motion to dismiss, and remand for the trial court to
reconsider the motion based on the evidence presented at the
hearing and the state’s burden of proof under section 776.032(4).
PETITION GRANTED.
ROBERTS, WETHERELL, and OSTERHAUS, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2015 Fla. App. LEXIS 11036, 2015 WL 4470032
...We grant the State’s Motion for Clarification/Rehearing,
withdraw the prior opinion and substitute the following in its place:
Defendant James Arauz appeals the denial of his motion to dismiss the
criminal charges against him based on sections 776.032 and 776.12, Florida
Statutes (2009), commonly called the “Stand Your Ground” law....
...Therefore, we affirm the denial of
Arauz’s motion to dismiss.
Arauz was charged with second degree murder for stabbing the victim
several times.1 Arauz does not deny that he stabbed the victim. Rather, he claims
that he is immune from criminal prosecution pursuant to Section 776.032 because
he believed the force he used was necessary to prevent the imminent commission
of a forcible felony, specifically a sexual battery,2 by the victim.
When a defendant files a motion to dismiss based upon the Stand Your...
...Ground law, the trial court must conduct an evidentiary hearing and weigh all the
factual evidence presented. Dennis v. State,
51 So. 3d 456, 458 (Fla. 2010) (“We
conclude that where a criminal defendant files a motion to dismiss on the basis of
section
776.032, the trial court should decide the factual question of the
1 Arauz was also charged with credit card theft and fraudulent use of the victim’s
credit card.
2See Sections
776.012 and
776.08, Florida Statutes (2013) defining sexual b...
CopyPublished | Florida 3rd District Court of Appeal | 2015 Fla. App. LEXIS 11042, 2015 WL 4464474
...force with force, including deadly force if he or she reasonably
believes it is necessary to do so to prevent death or great bodily harm
to himself or herself or another or to prevent the commission of a
forcible felony.
§
776.013(3), Fla. Stat. (2010).
Section
776.032 provides immunity from criminal prosecution and civil
action for the justifiable use of force as permitted in sections
776.012,
776.013, and
776.031 (where the use of force is in defense of another).
Section
776.041 explains...
CopyPublished | Florida 2nd District Court of Appeal
...Tallahassee, and Brandon R. Christian,
Assistant Attorney General, Tampa, for
Appellee.
VILLANTI, Judge.
Prior to trial, Anthony Dominic Catalano filed a motion to dismiss the
information charging him with manslaughter with a weapon based on section 776.032,
Florida Statutes (2014), Florida's "Stand Your Ground" law....
...the hearing that Catalano is not entitled to immunity, it shall enter an order containing its
findings and reinstate Catalano's conviction.1
Finally, we note that the Third District recently reached the opposite
conclusion concerning the retroactivity of section 776.032, and it certified conflict with
our decision in Martin....
CopyPublished | Florida 4th District Court of Appeal | 2013 WL 3717092, 2013 Fla. App. LEXIS 11228
WARNER, J. In finding T.P., a juvenile, guilty of battery, the court rejected his self-defense claim based upon Florida’s “Stand Your Ground” law. See § 776.032, Fla....
...He had already passed her when she “fought him down on to the seat.” Inconsistent with her earlier testimony on direct, she denied that when T.P. bumped her, she pulled his jacket. She said that when she turned around, he hit her and they started fighting. The defense argued that section 776.032, Florida Statutes, the Stand Your Ground law, applied and that T.P....
CopyPublished | Florida 1st District Court of Appeal
...with
attempted second-degree murder, following a shooting that took
place during an altercation with his mother’s boyfriend.
Washington claimed that he acted in self-defense and moved to
dismiss the charge under Florida’s Stand-Your-Ground law,
section 776.032, Florida Statutes....
...lesser crime of aggravated assault with a firearm.
On appeal, Washington argues that he is entitled to a new
Stand-Your-Ground immunity hearing based on an intervening
change in the law. At the time of Washington’s immunity
hearing, Florida case law interpreting section
776.032 required
that Washington prove entitlement to immunity by a
preponderance of the evidence. Bretherick v. State,
170 So. 3d
766, 775 (Fla. 2015). While this appeal was pending, the Florida
Legislature amended section
776.032 to change both the burden
and quantum of proof required for establishing entitlement to
immunity. See Ch. 2017-72, § 1-2, Laws of Fla. Now, once a
defendant makes a prima facie claim of immunity, the State must
prove by clear and convincing evidence that the defendant is not
entitled to immunity. §
776.032(4), Fla. Stat. (2017).
This Court has previously held that the 2017 amendment to
section
776.032 is procedural in nature and therefore applies
retroactively to pending cases....
...1st DCA Jan. 7, 2019)
(citing Mayers v. State, 43 Fla. L. Weekly D2800,
2018 WL
6598716 (Fla. 1st DCA Dec. 17, 2018)); see also Martin v. State,
43 Fla. L. Weekly D1016,
2018 WL 2074171 (Fla. 2d DCA May 4,
2018) (holding that the 2017 amendment to section
776.032 is
procedural in nature and thus should be applied retroactively to
pending cases)....
...As we have done before, we certify conflict with Love
and Hight.
Based on this Court’s precedent, Washington is entitled to
relief. We therefore reverse Washington’s conviction and remand
for the trial court to conduct a new immunity hearing under
section 776.032, as amended....
CopyPublished | Florida 2nd District Court of Appeal
...BLACK, Judge.
Calvin Lewis petitioned this court for a writ of prohibition to prevent his
further prosecution for first-degree murder following the trial court's denial of his motion
to dismiss based upon Stand Your Ground immunity under section 776.032(1), Florida
Statutes (2017)....
...Instead he
waited well over a month until the eve of a jury trial in a first-degree murder case to file
the petition. Moreover, there is no requirement that the trial court make express
findings of fact in an order denying a motion to dismiss pursuant to section 776.032.
Substantive law provides that the denial of Stand Your Ground motions to
-2-
dismiss be challenged by prohibition....
CopyPublished | Florida 1st District Court of Appeal
...missiles (a second-degree felony) and one count of discharging a
firearm from a vehicle, both counts arising from an instance of
“road rage” that occurred on May 6, 2016. His motion to dismiss
based on the “Stand Your Ground” immunity found in section
776.032, Florida Statutes (2015), was earlier denied by the trial
court after a hearing....
...e
Appellant’s conviction and remand for the trial court to conduct a
new “Stand Your Ground” immunity hearing at which the State
would bear the burden of proof, with the statutorily imposed
quantum of proof being clear and convincing evidence. §
776.032(4), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2014 WL 340677, 2014 Fla. App. LEXIS 1156
NORTHCUTT, Judge. Michael Micklos was charged with the improper exhibition of a firearm, a first-degree misdemeanor. See §
790.10, Fla. Stat. (2011). He moved to dismiss the charge, claiming immunity from prosecution under section
776.032, Florida Statutes (2011), commonly known as the “Stand Your Ground” law....
CopyPublished | Florida 3rd District Court of Appeal
...sistance in
advising her not to testify in her own defense. She specifically asserted that
because she did not testify, the trial judge excluded a myriad of exculpatory
evidence, including the 911 recording, evidence bearing on Nissim’s
2
§ 776.032, Fla....
CopyPublished | Florida 3rd District Court of Appeal
...Finding no departure from the essential
requirements of law, we deny relief.
BACKGROUND
After he was charged with two counts of second-degree murder with a
firearm following a deadly nightclub altercation, Bailey invoked Florida’s
Stand Your Ground law, codified in section 776.032, Florida Statutes (2016),
asserting he was immune from prosecution because he was acting in self-
defense and defense of another, namely his brother....
...that he was entitled to immunity from prosecution. Thereafter, Bailey
pursued a writ of prohibition before this court.
2
While the petition was pending, the Florida Legislature amended
section 776.032(4), Florida Statutes. The amendment shifted the burden of
persuasion to the State and changed the quantum of proof to a clear and
convincing standard. See § 776.032(4), Fla....
...immunity hearings conducted on or after the statute’s effective date.” Id. at
190. After Love was decided, Bailey filed a successive immunity motion,
again alleging he acted in self-defense, but this time he sought to dismiss
the charges under the newly amended section 776.032(4), Florida Statutes.
The material facts in the motion were unchanged.
3
The trial court denied relief, finding “[t]he Florida Supreme Court’s
decision in Love [was] clearly dete...
...3d 904, 906 (Fla. 1st
DCA 2011).
In Love, the Florida Supreme Court considered a conflict between this
court’s opinion in Love v. State,
247 So. 3d 609 (Fla. 3d DCA 2018),
determining that the changes to the quantum and burden of proof in section
776.032(4) were substantive changes in the law not subject to retroactive
application, and the Second District Court of Appeal’s opinion in Martin v.
State, 313 So....
...e at a pretrial evidentiary hearing,
in the context of their analogous immunity laws.”); Dennis v. State,
51 So. 3d
456, 459 (Fla. 2010) (“The trial court recognized that no procedure had yet
been enacted for deciding claims of immunity under section
776.032(1).”).
6
Then, recognizing an inconsistency in prior pronouncements relating to the
retroactivity of remedial statutes, the court observed that the application of a
new procedural statute “generally turn[s] on the posture of the case, not the
date of the events giving rise to the case.” Love,
286 So. 3d at 187.
Against this background, the court concluded that “section
776.032(4)
was intended to and does apply in [a] ‘commonsense’ and ‘ordinar[y]’
manner.” Id....
...2d 445, 446 (Fla. 1992)). Our high court eschewed this application,
finding “[t]he caselaw does not support such a default application of a
procedural statute. And the legislation itself is devoid of any suggestion that
the Legislature intended section 776.032(4) to undo pre-effective-date
immunity hearings.” Id.
7
In several Love progeny decisions, our sister courts have similarly
determined that defendants in nonfinal cases are not entitled to new
immunity hearings based upon the intervening statutory change....
...Feaster is not entitled to a new immunity hearing because his immunity
hearing occurred before the amended statute’s effective date.”); Nieves
Rivera v. State,
300 So. 3d 757, 759 (Fla. 4th DCA 2020) (“Based on the
supreme court’s holding that section
776.032(4) is a procedural change that
applies to all Stand Your Ground hearings conducted on or after its effective
date, and in light of the fact that Rivera’s Stand Your Ground hearing
occurred before the amended statute’s effective date, we affirm.”);
Washington v....
CopyPublished | Florida 4th District Court of Appeal
...Bettendorf,
Senior Assistant Attorney General, West Palm Beach, for respondent.
GROSS, J.
Christopher Krickovich, a deputy sheriff, petitions for a writ of
prohibition to prevent his prosecution for two counts of misdemeanor
battery on a juvenile. Petitioner alleges that he has both Stand Your
Ground immunity under section
776.032, Florida Statutes (2018), and
immunity from prosecution under section
870.05, Florida Statutes (2018),
which justifies an officer’s use of force to disperse an unlawful assembly.1
We deny the petition....
...For example, section
776.05, Florida
Statutes (2018), describes situations where a law enforcement officer “is
justified in the use of any force.” The Florida Supreme Court has
recognized that such language is consistent with a defense at trial, as
opposed to a statute, such as section
776.032, that plainly affords pretrial
immunity....
...disperse.
Id. at 576. The reference to the “trial judge and jury” indicates that the
court viewed section
870.05 as a defense at trial.
Nothing in section
870.05 suggests a legislative intent to provide for
immunity. This is in contrast to section
776.032, which expressly provides
for immunity.
3
The Petition for Writ of Prohibition is denied.
MAY and KUNTZ, JJ., concur.
* * *
Not final until disp...
CopyPublished | Florida 4th District Court of Appeal
...(2020) (reclassifying misdemeanor battery on a code inspector as “a
felony of the third degree”).
condominium unit.” She also argued that the State could not overcome
“her prima facie claim of self-defense immunity from criminal prosecution”
pursuant to section 776.032(4), Florida Statutes (2020), which places the
“burden of proof by clear and convincing evidence” on the State.
Likewise, Paese argues in the petition she filed here that this case
“stands at the intersection” of our SYG jurisprudence and her right to
privacy....
...Florida grants a right to “[i]mmun[ity] from criminal prosecution and
civil action for the [justifiable] use or threatened use of such force”
permitted by sections
776.012,
776.013, or
776.031, Florida Statutes
(2020), except in certain circumstances not applicable in this case.
§
776.032(1), Fla. Stat. (2020). 4 As our supreme court explained in Dennis
v. State,
51 So. 3d 456, 462 (Fla. 2010), “[s]ection
776.032(1) expressly
grants defendants a substantive right to not be arrested, detained,
charged, or prosecuted as a result of the use of legally justified force.”
Whether a defendant was justified in using a particular level of force
against a...
...than a
dwelling or personal property, lawfully in his or her possession
4 The immunity does not apply if “the person using or threatening to use force
knew or reasonably should have known that the [victim] was a law enforcement
officer.” § 776.032(1), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 2746, 2015 WL 806900
...Weekly D372a (Fla. 5th DCA Feb. 6, 2015) (reversing and. remanding for discharge on counts of second-degree murder (reduced to manslaughter) and attempted second-degree murder (reduced to aggravated battery) based on “Stand your Ground” immunity under sections
776.032 and
776.012, Florida Statutes)....
...ss, and because there was competent, substantial evidence to support the trial court’s finding that Mayo acted in self-defense, we agree with Mayo that the trial court erred in concluding that he was not entitled to immunity from prosecution under section 776.032(1), Florida Statutes....
CopyPublished | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 2232, 2011 WL 611841
...In September 2009, Julio Cruz (Defendant) filed an emergency petition for writ of prohibition with this court, seeking to prohibit the Broward County circuit court from proceeding to trial until the Florida Supreme Court determines the proper procedure for deciding immunity from prosecution pursuant to section 776.032, Florida Statutes (2009) (the “Stand Your Ground” law, enacted by chapter 2005-27, section 5, at 202, Laws of Florida)....
CopyPublished | District Court of Appeal of Florida
a motion seeking immunity and dismissal under §
776.032, Florida Statutes. At a subsequent hearing in
CopyPublished | Florida 3rd District Court of Appeal
to the Stand Your Ground ("SYG") statute, section
776.032, Florida Statutes (2017). The date of the alleged
CopyPublished | Florida 3rd District Court of Appeal
...Before SALTER, LUCK and LINDSEY, JJ.
PER CURIAM.
Jeff Arceri petitions for a writ of certiorari quashing a Monroe County
Circuit Court Order declining retroactive application of the 2017 amendments to
the Stand Your Ground (“SYG”) statute, section 776.032, Florida Statutes (2017).
The date of the alleged crime was July 15, 2014, and the effective date of
enactment of the SYG amendments (altering the burden and standard of proof
regarding claims of SYG immunity) was June 9, 2017....
CopyPublished | Florida 3rd District Court of Appeal
...General, for respondent.
Before FERNANDEZ, C.J., and LOGUE, and BOKOR, JJ.
PER CURIAM.
Guillermo Penalver seeks a writ of certiorari quashing the trial court’s
order denying his motion to dismiss based on stand your ground immunity
filed pursuant to section 776.032, Florida Statutes (2020)....
CopyPublished | Florida 5th District Court of Appeal
...Tatman,
Assistant Attorney General, Daytona
Beach, for Respondent.
PER CURIAM.
Joseph Guida petitions this Court for a Writ of Prohibition, challenging
the trial court’s unelaborated written order denying his motion for immunity
pursuant to the Stand Your Ground law of section 776.032(4), Florida
Statutes (2019), after an evidentiary hearing....
...Petitioner playing loud music on his computer in the middle of the night in his
office located in the family home. Petitioner filed a motion to dismiss
pursuant to the Stand Your Ground law. Petitioner’s motion sets forth why
he should be immune from prosecution under section 776.032(4) as to Count
One, but provides no reasons as to why he would have immunity from
prosecution as to Count Two.
Section 776.032(4) was amended in 2017 to clarify that the burden of
proof is on the State when dealing with Stand Your Ground immunity motions
and that the State’s burden is to prove by clear and convincing evidence that
the statutory immunity does not apply....
CopyPublished | Florida 2nd District Court of Appeal
...requested documents may include information relevant to those discrete
elements.2 See Tyson,
114 So. 3d at 445 (holding that the State failed to
1 We note that at least as of the time of the hearing, Jaeger had not
filed any Stand Your Ground motion under section
776.032, Florida
Statutes (2023), and she conceded, "If we end up pursuing the self-
defense claim, that's an affirmative defense and we would have to
disclose those records that we would be intending to use."
2 The State has not charged...
CopyPublished | Florida 3rd District Court of Appeal
...Dominguez,
Assistant Attorney General, for respondent.
Before EMAS, MILLER and LOBREE, JJ.
PER CURIAM.
Stephen Johnson petitions this court for a writ of certiorari quashing
the trial court’s order denying his motion to dismiss filed pursuant to Florida’s
Stand Your Ground law, section 776.032, Florida Statutes (2020)....
CopyPublished | Florida 1st District Court of Appeal | 2013 WL 6283822, 2013 Fla. App. LEXIS 19342
...we reversed and remanded “for a new trial on the second-degree murder charge only.” Id. at 1208 . On remand, trial counsel filed a motion to dismiss “the Information filed in this cause” on the basis of immunity from pros *892 ecution under section 776.032, Florida Statutes (2007)....
...Williams also argued on direct appeal that he was entitled to a new trial on the charge of aggravated battery because the state's circumstantial evidence was legally insufficient to rebut his hypothesis that Ms. Johns was struck by a shot fired by someone else. .Sometimes referred to as the "Stand Your Ground Law,” section 776.032(1), Florida Statutes (2007), provides that a "person who uses force as permitted in s....
...he second postconviction motion. We dismissed the appeal from the order on the first motion on December 19, 2012. On the same date, Mr. Williams filed a motion in the trial court to dismiss the aggravated battery charge based on immunity pursuant to section 776.032, Florida Statutes (2007), and Florida Rule of Criminal Procedure 3.190(b)....
...In closing argument at the November 2011 immunity hearing, trial counsel indicated he tended not to believe Mr. Williams’ statement that someone first shot at him until he later "started going through the witness statements.” Although trial counsel referred to the "newness” of the law, section 776.032 was enacted in 2005-four years before Mr....
CopyPublished | Florida 1st District Court of Appeal
...overcome a defendant’s claim of immunity. Ch. 2017-72, § 1-2,
Laws of Fla. Now, after the defendant makes a prime facie claim
of immunity, the State bears the burden to prove by clear and
convincing evidence that the defendant is not entitled to
immunity. § 776.032(4), Fla....
...1st DCA 2018), wherein this Court held
that the 2017 amendment to the Stand Your Ground law applied
retroactively, Tynes is entitled to relief. See also Martin v. State,
43 Fla. L. Weekly D1016,
2018 WL 2074171 (Fla. 2d DCA May 4,
2018) (holding that the 2017 amendment to section
776.032 is
procedural in nature and therefore can be applied retroactively).
But see Hight v....
CopyPublished | Florida 1st District Court of Appeal | 2015 Fla. App. LEXIS 19106, 2015 WL 9287023
...blocked the swing, then grabbed the stick and simultaneously stabbed his father. In the process, Rudin sustained minor injuries to his left hand and wrist. Without making any specific factual findings, the trial court determined that Rudin failed to establish immunity from prosecution under- section 776.032 by a preponderance of the evidence....
...ave 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 place .where he or she has a right to be. §
776.012(2), Fla. Stat. (2014). Section
776.032 provides further that a person who uses deadly force as permitted in section
776.012 is justified in such conduct and is immune from criminal prosecution so long as the person against whom the force was used was not a law enforcement officer. §
776.032(1), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2016 Fla. App. LEXIS 17881
...See
§
90.804, Fla. Stat. (2012). The defendant challenges this ruling, asserting error based
on the court's failure to address section
90.803(22). We agree and, therefore, remand
this claim for the post-conviction court's consideration.
2 See §
776.032, Fla....
CopyPublished | Supreme Court of Florida
...vs.
STATE OF FLORIDA,
Respondent.
December 19, 2019
CANADY, C.J.
The certified conflict issue in this case is whether section
776.032(4),
Florida Statutes (2017), which effective in June 2017 altered the burden of proof at
pretrial immunity hearings under Florida’s “Stand Your Ground” law, applies to
pending cases involving criminal conduct alleged to have been committed prior to
the effective date of the statute. In the decision below and the certified conflict
case, the district courts framed this issue as presenting a “retroactivity” question
that itself turns on whether section
776.032(4) is procedural or substantive.
This Court has for review Love v. State,
247 So. 3d 609, 613 (Fla. 3d DCA
2018), in which the Third District Court of Appeal concluded that section
776.032(4) was “a substantive change in the law, and therefore does not apply
retroactively.” The Third District also concluded that article X, section 9 of the
Florida Constitution precluded the statute from being applied retroactively. Id. 1
According to the Third District, this lack of retroactivity meant that section
776.032(4) was inapplicable in the case, even though the defendant’s immunity
hearing took place after the statute went into effect. Id. at 610, 612. In the
certified conflict case of Martin v. State, 43 Fla. L. Weekly D1016, D1018,
2018
WL 2074171, at *4 (Fla. 2d DCA May 4, 2018), the Second District Court of
Appeal concluded that section
776.032(4) “is procedural in nature and, therefore,
retroactive in application; that, as such, it applies to pending cases, including those
on appeal.” The Second District also concluded that article X, section 9 did not bar
retroactive application of the statute....
...Whether these changes are themselves
retroactive is not before this Court. We look only to the pre-2019 language.
-2-
granted discretionary review of Love and has jurisdiction. See art. V, § 3(b)(4),
Fla. Const.
We agree with Martin that section 776.032(4) is a procedural change in the
law and is not categorically barred by article X, section 9 from applying in pending
cases....
...ere
the immunity hearing was held prior to the statute’s effective date. The
determination of whether a new procedure applies in a pending case generally
depends on the posture of the case. Here, the relevant event is the immunity
hearing, and section 776.032(4) applies to those immunity hearings taking place on
or after the statute’s effective date....
...We begin by briefly reviewing the Stand Your Ground law and the statutory
amendment at issue. We next present the facts and procedural history of Love and
discuss Martin. We then explain our decision in this case, including our
conclusion that applying section
776.032(4) in a pending case does not entail a
retroactive application of the statute.
-3-
I. SECTION
776.032(4)
Under the Stand Your Ground law, a person is generally “immune from
criminal prosecution and civil action” when that person justifiably uses or threatens
to use force under certain circumstances. §
776.032(1), Fla. Stat. (2017); see ch.
2005-27, Laws of Fla. The criminal immunity “includes arresting, detaining in
custody, and charging or prosecuting the defendant.” §
776.032(1), Fla. Stat. In
Dennis v. State,
51 So. 3d 456, 464 (Fla. 2010), this Court held that a motion to
dismiss asserting immunity under section
776.032 “should be treated as a motion
filed pursuant to [Florida Rule of Criminal Procedure] 3.190(b)” and that the trial
court should conduct a pretrial evidentiary hearing and “decide the factual question
of the applicability of t...
...In other words, the burden should be on the State to “establish[]
-4-
beyond a reasonable doubt that the defendant’s conduct was not justified under the
governing statutory standard.” Id.
Section 776.032(4) was the Legislature’s eventual response to Bretherick.
The 2017 amendment to section 776.032 provides:
(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).
§ 776.032(4), Fla....
...Love does not dispute these facts.
-5-
Thereafter, the State charged Love with one count of attempted
second degree murder with a firearm. Love invoked Florida’s Stand
Your Ground law, section
776.032, Florida Statute[s] (2017),
asserting she was immune from prosecution because she committed
the crime while defending her daughter.
Love,
247 So. 3d at 610. Love argued to the trial court that the newly enacted
amendment in section
776.032(4) should apply to her immunity hearing. The State
countered that section
776.032(4) did not have retroactive application and that
even if it did, applying it to pending cases would violate article X, section 9....
...In doing so, Smiley noted among other things that a statute is deemed
substantive if it “achieves a ‘remedial purpose by creating substantive new rights
or imposing new legal burdens.’ ” Id. at 334 (quoting Arrow Air,
645 So. 2d at
424). Here, the trial court determined that section
776.032(4) “create[d] no
substantive rights” and that terms such as “new legal burdens” had to be “strictly
limited to the creation or destruction of substantive or vested rights.”
The trial court also declined to read to...
...of the [constitutional] prohibition so long as they do not address themselves to the
essence of the offense itself, i.e., the definition of the crime, or the nature of the
-7-
punishment.” The trial court concluded that section 776.032(4) “merely changed
the procedure for how a defendant enforces his right to statutory immunity.”
After concluding that section 776.032(4) was procedural and that article X,
section 9 did not apply, the trial court concluded that the statute nevertheless
violated the separation of powers, namely this Court’s rulemaking authority under
article V, section 2(a)....
...daughter] would lose her life or suffer great
bodily harm.” After effectively concluding that the video evidence prevented Love
from meeting a reasonable person standard, 2 the trial court—in seemingly
irreconcilable fashion—opined that had section 776.032(4) applied, Love would be
entitled to immunity....
...to
immunity. Love then petitioned the Third District for a writ of prohibition.
The Third District’s Decision
In denying Love’s petition, the Third District first rejected the trial court’s
conclusion that section 776.032(4) was unconstitutional....
...this case the substantive right to immunity. Love,
247 So. 3d at 611.3
The Third District next disagreed with the trial court’s conclusion that the
2017 amendment was procedural. The Third District determined that Smiley
“mandates a finding that [section
776.032(4)] is a substantive change in the law.”
Id....
...The Third District reasoned that the statute “imposed a new legal
burden on the State, requiring the State to prove by clear and convincing evidence
that the defendant was not justified in using or threatening to use force.” Id. at
612-13. And according to the Third District, because section 776.032(4) is
substantive, it “therefore does not apply retroactively.” Id. at 613.
3. We have been presented with no challenge to the Third District’s ruling
regarding the constitutionality of section 776.032(4)....
...We thus do not address this
issue.
-9-
Lastly, again looking to Smiley, the Third District explained its view that
article X, section 9 also prevented the statute from being applied to Love’s case:
In the case before us, section 776.032(4) qualifies as a criminal
statute because it affects whether the State can prosecute a defendant
in the same manner as before subsection (4) was added....
...the burden of proof at the
immunity hearing would now shift to the State and the burden would
rise to clear and convincing evidence.
Id. Recognizing that its decision conflicted with Martin, in which the Second
District concluded that section 776.032(4) was a procedural change that should be
applied retroactively, the Third District certified conflict with Martin, while
opining that Martin was inconsistent with Smiley....
...at 611 n.3.
Martin—the Certified Conflict Case
In Martin, the defendant, Martin, was charged with felony battery. Martin,
43 Fla. L. Weekly at D1016. The trial court denied Martin’s immunity motion,
and Martin was tried, convicted, and sentenced. Id. While Martin’s appeal was
pending, section 776.032(4) went into effect, and Martin argued that he was
“entitled to a new immunity hearing.” Id....
...at D1017. The Second District then noted that “statutory changes to the burden
of proof—the change at issue here—are invariably deemed procedural in nature for
purposes of retroactive application.” Id. And the Second District concluded that
section 776.032(4) was no exception to that general rule and thus “can be applied
retrospectively” because it altered “[n]either the substantive rights of a successful
claim of immunity nor the necessary elements of proof to establish a claim of
immunity.” Id.
III. ANALYSIS
The certified conflict issue is whether section 776.032(4), Florida Statutes
(2017), applies to cases that were pending at the time the statute went into effect.
- 11 -
This issue presents a pure question of law that this Court reviews de novo....
...g the retroactivity of procedural law
have been less than precise. Indeed, we acknowledge having been unclear about
what it means to give retroactive application to procedural law. But properly
understood, the caselaw compels the conclusions that section 776.032(4) is
procedural, applies to all immunity hearings on or after the statute’s effective date,
and does not implicate article X, section 9.
To explain our decision, we first briefly examine Smiley, on which the Third
District in Love largely relied in concluding that section 776.032(4) is substantive
and thus not retroactive. We then explain why Smiley does not control and why
section 776.032(4) is procedural. We then clarify some of this Court’s previous
pronouncements regarding the retroactivity of procedural law and explain why the
Second District in Martin erred in concluding that section 776.032(4) applied in all
pending cases, including cases in which the Stand Your Ground immunity hearing
- 12 -
was conducted prior to the effective date of that provision....
...Substantive
Smiley noted that a statute is deemed substantive if it “achieves a ‘remedial
purpose by creating substantive new rights or imposing new legal burdens.’ ” Id.
at 334 (quoting Arrow Air,
645 So. 2d at 424). The Third District here largely
relied on this language, reasoning that under section
776.032(4) the State has the
new burden of disproving an immunity claim by clear and convincing evidence.
See Love, 247 So....
...The State advances the same reasoning and also
cites the following language from Arrow Air: “The presumption against retroactive
application of a law that affects substantive rights, liabilities, or duties is a well
established rule of statutory construction.” Arrow Air,
645 So. 2d at 425. The
State argues that section
776.032(4) “work[s] a significant transformation of the
immunity defense.” We conclude that the trial court here and the Second District
in Martin correctly concluded that section
776.032(4)—a statute that imposes a
new procedural “burden”—is procedural rather than substantive.
In State v....
...therefor, while procedural law is that which provides or regulates the
- 15 -
steps by which one who violates a criminal statute is punished. See
State v. Augustine, 197 Kan. 207, 416 P.2d 281 (1966).
Id. Under Garcia, section
776.032(4) is clearly procedural law. Section
776.032(4) neither “declares what acts are crimes” nor “prescribes the punishment
therefor.” Id. Section
776.032(4) does not alter the elements of self-defense,
justifiable force, or any crime, nor does it alter the punishment for any crime.
Instead, it alters the law “which provides or regulates the steps by which,” id.,
immunity determinations are made. The statute changed the “procedure . . . for
deciding claims of immunity.” Dennis,
51 So. 3d at 459. The conclusion that
section
776.032(4) is procedural is wholly consistent with Smiley’s determination
that the statute there was substantive....
...criminal act to
use deadly force without first needing to retreat.” Smiley,
966 So. 2d at 335. That
statute thus “declare[d] what acts are crimes.” Garcia,
229 So. 2d at 238.
This Court’s civil cases do not support a conclusion that section
776.032(4)
is substantive. Unlike section
776.032(4), the statutes at issue in those cases
generally created a new substantive right or interfered with vested rights....
...rawn”).
Here, the Legislature did not withdraw or interfere with any vested right.
Nor did the Legislature create any new substantive right. The “substantive right to
assert immunity” was established in 2005. Dennis,
51 So. 3d at 462. Section
776.032(4) merely altered “the method of conducting litigation involving” that
right. Caple,
753 So. 2d at 54 (quoting Haven Federal Savings & Loan Ass’n v.
Kirian,
579 So. 2d 730, 732 (Fla. 1991)). Although section
776.032(4) imposed a
- 17 -
new procedural “obligation” on the State, it did not—unlike in Altenhaus—
substantively impose any new obligation or duty with respect to any underlying
conduct....
...Indeed, it imposed on the State a lesser burden than the State otherwise
already has at trial with respect to the same “factual question.” Bretherick,
170 So.
3d at 779 (Canady, J., dissenting).
Two additional factors support the conclusion that section
776.032(4) is
procedural....
...bears the burden of proof, by a preponderance of the evidence at a pretrial
evidentiary hearing, in the context of their analogous immunity laws”); Dennis,
51
So. 3d at 459 (“The trial court recognized that no procedure had yet been enacted
for deciding claims of immunity under section
776.032(1).”).
Retroactivity
We recognize that this Court’s previous pronouncements have not been
entirely consistent regarding the retroactivity of procedural statutes....
...completed before its enactment.” Landgraf,
511 U.S. at 269-70. This Court has
echoed on multiple occasions Landgraf’s notion of a retrospective law. E.g.,
Metropolitan Dade,
737 So. 2d at 499; Arrow Air,
645 So. 2d at 424-25.
Here, although section
776.032(4) may make it more difficult—as a
practical matter—for the State to proceed to trial, the statute in no way “attaches
new legal consequences to events completed before its enactment.” Landgraf,
511
U.S. at 270. Therefore, even if applied in a pending case, section
776.032(4) is not
truly a retrospective statute....
...Our orders approving amendments
to federal procedural rules reflect the commonsense notion that the
applicability of such provisions ordinarily depends on the posture of
the particular case.
Id. at 275 n.29 (emphasis added).
We conclude that section 776.032(4) was intended to and does apply in this
“commonsense” and “ordinar[y]” manner. Id. That is, the statute applies to those
immunity hearings, including in pending cases, that take place on or after the
statute’s effective date. This application of section 776.032(4)—essentially, giving
the statute prospective application—finds support in decisions from this Court.
- 21 -
For example, in Lee, 174 So....
...“prospective application” of the new rule and “not a true retroactive application,”
the latter of which would have required service “within 120 days of filing [the]
complaint.” Id. at 446.
In the certified conflict case, Martin correctly concluded that section
776.032(4) is procedural but then seemingly gave the statute “a true retroactive
- 22 -
application,” id., by ordering a new immunity hearing for a defendant convicted
prior to the statute’s effective date. The caselaw does not support such a default
application of a procedural statute. And the legislation itself is devoid of any
suggestion that the Legislature intended section 776.032(4) to undo pre-effective-
date immunity hearings....
...e past. . . . Statutes,
by contrast [to judicial opinions], typically pronounce what the law becomes when
the statutes take effect. This point is basic to our rule of law.”).
Indeed, the legislation on its face is plainly forward-looking. Section
776.032(4) provides that the procedures apply “once a prima facie claim of self-
defense immunity from criminal prosecution has been raised by the defendant at a
pretrial immunity hearing.” And the chapter law creating section 776.032(4)
provides that the “act shall take effect upon becoming a law.” Ch....
... Metropolitan
Dade,
737 So. 2d at 502, here there is no such “expressed legislative intent.”
- 23 -
Article X, Section 9
Article X, section 9 does not prevent section
776.032(4) from applying in
pending cases to immunity hearings that take place on or after the statute’s
effective date....
...”). Smiley
itself noted that the constitutional provision “imposes a restriction on retroactive
application of criminal legislation.” Smiley,
966 So. 2d at 336. And as explained
above, the mere application of a new procedural statute—like section
776.032(4)—
in a pending case is not a retroactive application....
...1926), for the
proposition that “the term ‘criminal statute’ is defined in a broad context.” Smiley,
966 So. 2d at 337. Dowling defined the term to include statutes that “deal in any
way with crime or its punishment.” Dowling,
109 So. at 591. Section
776.032(4)
on some level can be said to “deal ....
...Smiley,
966 So. 2d at 337. That reasoning is
consistent with this Court’s other caselaw, which reveals that the constitutional
provision addresses statutes that go to the essence of the underlying crime or the
character or degree of punishment. Section
776.032(4) impacts neither....
...at 687
(emphasis added). Rather, the provision “relates to the offense itself, or the
punishment thereof.” Id. And “the right to peremptory challenges appertains to
the remedy, the procedure under which prosecutions are conducted.” Id. Here,
nothing about section 776.032(4) alters “the essence of” any crime, affirmative
defense, or punishment....
...underpinning. See id. at 592 (“Such sentence is now final, the power of the court
over the subject-matter is at an end, and there exists no means by which the court
can regain control of the cause.”).
This case has nothing to do with finality, and section 776.032(4) does not
“affect ....
...for the
prosecution and punishment of offenses” but rather relates “to the essence of the
offense itself.” Mathis,
12 So. at 687. And as Lee reiterated post-Dowling: “We
are dealing with a question of procedure . . . .” Lee,
174 So. at 590. Section
776.032(4) presents a question of procedure.
- 27 -
IV. CONCLUSION
Section
776.032(4) is a procedural change in the law and applies to all Stand
Your Ground immunity hearings conducted on or after the statute’s effective date.
In Love, the pretrial hearing took place after the effective date of section
776.032(4) and should have been conducted under the new standard....
CopyPublished | Florida 1st District Court of Appeal
...Petitioner Clark Daniel Mayers seeks a writ of prohibition
directing the trial court to dismiss the second degree murder and
attempted first degree murder charges currently pending against
him based on the Stand Your Ground immunity provided in
section 776.032, Florida Statutes....
...After
conducting an immunity hearing on February 23, 2018, the trial
court entered a detailed written order which determined that the
evidence as to whether Petitioner was acting in self-defense was
inconclusive. The trial court held that a defendant had the
burden to prove immunity because an amendment to section
776.032 applied only prospectively and as such denied immunity
to Petitioner....
...y.
Because we have recently approved the retroactive application of
chapter 2017-72, §§ 1-2, Laws of Florida, which took effect June
9, 2017, and which shifted the burden of proof from the defendant
to the prosecution, we grant the petition. 1 See §
776.032(4), Fla.
Stat.
In Commander v. State,
246 So. 3d 1303 (Fla. 1st DCA 2018),
we were faced with the question of the retroactive application of
the amendment to section
776.032(4)....
...3d at 1303. We accepted the State’s concession of error in
Commander and cited with approval Martin v. State, 43 Fla. L.
Weekly D1016,
2018 WL 2074171 (Fla. 2d DCA May 4, 2018). In
Martin, the Second District determined that the statutory
amendment to section
776.032(4) was procedural and therefore
should be applied retroactively to shift the burden from the
defendant to the prosecution....
...State,
247 So.
3d 609 (Fla. 3d DCA 2018), rev. granted, SC 18-747,
2018 WL
3147946 (Fla. Jun. 26, 2018); Hight v. State, 43 Fla. L. Weekly
D1800,
2018 WL 3769191 (Fla. 4th DCA Aug. 8, 2018). The
courts in Love and Hight held therefore that the amendment to
section
776.032(4) operated only prospectively....
...petition, quash the order denying Petitioner’s motion to dismiss,
and remand for the trial court to discharge Petitioner pursuant to
the trial court’s alternative finding that the State did not meet its
burden if the amendment to the burden of proof in section
776.032(4) was applied retroactively.
PETITION GRANTED; CONFLICT CERTIFIED.
ROBERTS and MAKAR, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla....
CopyPublished | Florida 4th District Court of Appeal
...on charges of aggravated battery with a deadly weapon causing great
bodily harm, permanent disability, or permanent disfigurement. He
argues he is entitled to a new Stand Your Ground (“SYG”) hearing because
his renewed motion to dismiss was pending after the effective date of
section 776.032(4), Florida Statutes (2017)....
...3d 1160, 1162 (Fla.
3d DCA 2014)).
Florida’s SYG law essentially provides that a person is justified in using
deadly force and does not have a duty to retreat if that person believes
such force is necessary to prevent death or great bodily harm. §
776.032(1), Fla. Stat. (2017). The legislature amended the law, effective
June 9, 2017, to require the State to carry the burden of disproving a
prima facie claim of self-defense immunity in a pre-trial hearing by clear
and convincing evidence. § 776.032(4), Fla. Stat.
Our supreme court later held “[s]ection 776.032(4) is a procedural
change in the law and applies to all [SYG] immunity hearings conducted
on or after the statute’s effective date.” Love, 286 So....
...dant’s self-defense claim was
defeated.
In Elder v. State,
296 So. 3d 440 (Fla. 4th DCA 2020), we held that
although the trial court erroneously placed the burden on the defendant,
“[it] further ruled that even if the most recent version of section
776.032(4)
were ‘retroactively applied to put the burden on the State,’ the State still
met its burden.” Id....
CopyPublished | Florida 2nd District Court of Appeal
...Schomaker, Assistant Attorney General,
Tampa, for Appellee.
BADALAMENTI, Judge.
Peter Drossos appeals from his jury conviction and sentence for
manslaughter with a weapon. He argues that he is entitled to a new pretrial immunity
hearing under section 776.032, Florida Statutes (2017), Florida's "Stand Your Ground"
law, which the Florida Legislature amended during the pendency of this appeal to place
the burden on the State to overcome by clear and convincing evidence a criminal
defendan...
...criminal prosecution."
Bound by our prior panel decision in Martin v. State, 43 Fla. L. Weekly D1016 (Fla. 2d
DCA May 4, 2018), we reverse and remand for the trial court to conduct a new immunity
hearing and to apply the June 9, 2017, version of section 776.032.1
Prior to trial, Mr. Drossos moved to dismiss the information charging him
with second-degree murder based on section 776.032, Florida Statutes (2014). At the
time of his evidentiary hearing, Florida case law interpreting section 776.032 required
that Mr....
...Drossos thus proceeded to trial
where he relied on a theory of self-defense. The jury convicted him of the lesser-
included offense of manslaughter with a weapon.
While Mr. Drossos's case was pending on appeal, the Florida Legislature,
on June 9, 2017, amended section 776.032 to modify the burden of proof in a self-
defense immunity hearing. See ch. 2017-72, § 1, at 898-99, Laws of Fla. The
amendment to section 776.032 placed "the burden of proof by clear and convincing
evidence . . . on the party seeking to overcome the immunity from criminal prosecution."
Thereafter, this court held that the amendment to section 776.032 was procedural in
1We affirm the remaining issues raised by Mr....
...State, 43 Fla. L. Weekly D2670,
D2670 (Fla. 1st DCA Nov. 30, 2018) ("[T]he 2017 amendment to the Stand Your
Ground law applies retroactively."); Fuller v. State, 43 Fla. L. Weekly D2237, D2242
(Fla. 5th DCA Sept. 28, 2018) (holding that the 2017 amendment to section
776.032 is
procedural in nature and thus applies retroactively to cases pending on appeal and
noting its agreement with Martin). But see Hight v. State,
253 So. 3d 1137, 1143 (Fla.
4th DCA 2018) (holding that the 2017 amendment to section
776.032 was substantive
in nature and thus did not apply retroactively to cases pending on appeal and certifying
conflict with our decision in Martin); Love v. State,
247 So. 3d 609, 611-12 (Fla. 3d DCA
2018) (holding that the 2017 amendment to section
776.032 is not purely procedural
and thus cannot be applied retroactively to cases pending on appeal and certifying
conflict with our decision in Martin), review pending No. SC18-747,
2018 WL 3147946
(Fla. Jun. 26, 2018).
Because Mr. Drossos's case was pending on appeal at the time that the
Florida Legislature amended section
776.032 and cannot be distinguished in any
meaningful way from our prior panel holding in Martin, we are bound to apply Martin
here....
...Drossos is not
entitled to immunity, "the court shall enter an order reflecting its findings and reinstate
[Mr. Drossos's] conviction." See id.
Finally, we recognize that the Third and Fourth Districts have held that the
amendment to section 776.032 should not be applied retroactively to cases pending on
appeal; we therefore certify conflict with Hight and Love.
Reversed and remanded with directions; conflict certified.
LaROSE, C.J., and ROTHSTEIN-YOUAKIM, J.,...
CopyPublished | Supreme Court of Florida
...TO
HIMSELF OR HERSELF OR ANOTHER OR TO PREVENT THE
IMMINENT COMMISSION OF A FORCIBLE FELONY, IS
LIMITED TO INVOKING A DEFENSE UNDER SECTION
776.()5(1), OR IS ALSO PERMITTED TO SEEK IMMUNITY
FROM CRIMINAL PROSECUTION UNDER SECTIONS
776.()12(1) AND 776.032(1), FLORIDA STATUTES (2013), MORE
COMMONLY KNOWN AS FLORIDA’S “STAND YOUR
GROUND” LAW.
Peraza, 226 So....
...a person is justified in the use of deadly force and does not have a
duty to retreat if:
(1) He or she reasonably believes that such force is necessary to
prevent imminent death or great bodily harm to himself or herself or
another . . . .
§
776.012(2), Fla. Stat. (2013). Section
776.032, titled “lmmunity from criminal
prosecution and civil action for justifiable use of force,” and also part of the Stand
Your Ground law, provides in relevant part that
[a] person who uses force as permitted in s.
776.012, s.
776.013, or s.
776.031 is justified in using such force and is immune from criminal
prosecution and civil action for the use of such force . . . .
§
776.032(1), Fla....
...Then, the doctrine of in
pari materia applies.”
105 So. 3d at 20 (emphasis added).
Respectfully, to suggest that the doctrine of in pari materia applies in
every case is incorrect as a matter of law. As the circuit court
correctly found in this case, because sections
776.012(1)’s and
776.032(1)’s plain language is clear and unambiguous, Caamano
“need not have gone into the doctrine of in pari materia at all.” See
English v....
...As the Second District’s analysis recognizes, given the question presented
in this case and the arguments made, some consideration of section
776.05, Fla.
Stat., is necessary in order to determine whether it creates an ambiguity not
otherwise apparent on the face of sections
776.012(1) and
776.032(1), Fla....
...Deputy Peraza is asserting immunity from prosecution. Therefore, the
real question, clearly and precisely framed, is whether Deputy Peraza is “immune
from criminal prosecution” such that he is entitled to a pretrial immunity
determination. That immunity is addressed only in section
776.032(1), which
plainly says that the immunity is afforded to any “person who uses force as
permitted in s.
776.012.” §
776.032(1)....
...1, 2018), “where the Court is tasked with construing a statute, our first (and
often only) step . . . is to ask what the Legislature actually said in the statute, based
upon the common meaning of the words used.” (lntemal quotation marks and
citation omitted.) Here, the plain language of section 776.032(1) answers the
question presented.
CONCLUSION
For the foregoing reasons, we resolve the certified conflict and answer the
certified question by holding that law enforcement officers are eligible to assert
Stand Your Ground immunity, even when the use of force occurred in the course
of making a lawful arrest....
CopyPublished | Florida 4th District Court of Appeal
...hristopher Baum,
Deputy Solicitor General, Tallahassee, and Don M. Rogers, Assistant
Attorney General, West Palm Beach, for appellee.
LEVINE, J.
In 2012, appellant was charged with second-degree murder.
Appellant filed a motion to dismiss under section 776.032 of the Stand
Your Ground law and a pre-trial immunity hearing took place in 2014.
After the denial of his motion, appellant went to trial and was convicted
of a lesser included offense, manslaughter, in 2016. Appellant appealed
his conviction. During the pendency of his appeal, the legislature
amended section 776.032 by adding subsection (4) which took effect
upon the amendment becoming law on June 9, 2017....
...We find the other issues raised by appellant to be without
merit and we affirm on those grounds without discussion.
Appellant was charged with second-degree murder of the victim, Craig
Rivera. Appellant filed a motion to dismiss based on immunity under
section 776.032 of the Stand Your Ground law....
...and by statute eliminated the common law duty of an individual to
retreat before using force in self-defense. §
776.012(1), Fla. Stat.; Kumar
v. Patel,
227 So. 3d 557, 559 (Fla. 2017). The statute also provides
immunity for those who lawfully use force in self-defense. §
776.032,
Fla....
...and that the defendant has to prove by a preponderance of evidence that
the defendant’s “use of force was justified, as specified by statute.”
Following the issuance of Bretherick, and while this appeal was
pending, the Florida Legislature amended section 776.032 and added
subsection (4), which states:
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 bu...
...defining crime,
treating of its nature, or providing for its punishment . . . [or] deal[ing] in
any way with crime or its punishment.” Love, 43 Fla. L. Weekly at
D1066 (quoting Smiley,
966 So. 2d at 337) (alterations in original).
The Third District concluded that
section
776.032(4) qualifies as a criminal statute because it
5
affects whether the State can prosecute a defendant in the
same manner as before subsection (4) was added....
...not be prosecuted in the same manner as before because the
burden of proof at the immunity hearing would now shift to
the State and the burden would rise to clear and convincing
evidence. Thus, article X, section 9 of the Florida
Constitution does not allow section 776.032 to be applied
retroactively....
...of error on appeal based
on the prosecutor’s agreement at the Stand Your Ground immunity
hearing that the state had the burden of proof); Martin v. State, 43 Fla. L.
Weekly D1016, D1018 (Fla. 2d DCA May 4, 2018) (holding that the 2017
amendment to section 776.032 was procedural in nature and therefore
applied retroactively to the defendant’s case which was pending on
appeal).
We agree with the Third District in Love in its reliance on the Savings
Clause of the Florida Constitution....
CopyPublished | Florida 4th District Court of Appeal | 2017 Fla. App. LEXIS 12472, 2017 WL 3730352
...which appeared to be a firearm; (2) failed to obey officers’ commands to
drop the weapon; and (3) pointed the weapon towards officers before being
shot. The court found that the officer was entitled to immunity from
prosecution under sections
776.012(1) and
776.032(1), Florida Statutes
(2013), more commonly known as Florida’s “Stand Your Ground” law.
The state argues that, as held in State v....
...mpting the officer
to shoot at the man, resulting in the man’s death.
b. The Circuit Court’s Conclusions of Law
In the circuit court’s conclusions of law, the court began by reciting the
statutes at issue, that is, sections
776.012(1),
776.032(1), and
776.05(1),
Florida Statutes (2013).
In 2013, section
776.012(1) provided:
[A] person is justified in the use of deadly force and does
not have a duty to retreat if:
(1) He or she reasonably believes that 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[.]
§
776.012(1), Fla. Stat. (2013).
Section
776.032(1) provided, in pertinent part:
A person who uses force as permitted in s....
...is
justified in using such force and is immune from criminal
prosecution and civil action for the use of such force . . . . As
used in this subsection, the term “criminal prosecution”
includes arresting, detaining in custody, and charging or
prosecuting the defendant.
§ 776.032(1), Fla....
...making the arrest[.]
§
776.05(1), Fla. Stat. (2013).
Having reviewed the foregoing statutes, the circuit court then
addressed the state’s argument that the officer could not avail himself of
Stand Your Ground immunity under sections
776.012(1) and
776.032(1)
because, as a law enforcement officer, his use of force was governed solely
by section
776.05(1)....
...We hold that the specific language of section
776.05, titled “Law enforcement officers; use of force in
making an arrest,” must apply to the behavior of law
enforcement officers during the course of an arrest, rather
than the language of section
776.032, which applies generally
to the public at large.
Caamano,
105 So. 3d at 22.
The circuit court rejected the state’s argument and concluded, as a
matter of law, that the officer in the instant case was eligible to seek Stand
Your Ground immunity under sections
776.012(1) and
776.032(1)....
... during the course of an arrest.” Caamano at 20. The [officer]
in this case was responding to an emergency and was
investigating a disturbance. . . . Therefore, the limitation on
law enforcement officers to proceed under section
776.05 to
the exclusion of section
776.032 is distinguishable from the
present case as such limitation only applies, if at all, to cases
where the officer is in the process of making an arrest.
Therefore this Court finds that the [officer] herein is eligible to
seek immunity under Florida Statute
776.012 and
776.032 in
the instant case.
(emphasis added; footnote omitted).
Second, the circuit court “urge[d] the 4th DCA to reexamine the legal
holding in Caamano.” The circuit court observed that Caamano applied
the rule of statutory construction known as in pari materia to reconcile the
differences between sections
776.05 and
776.032. See Caamano,
105 So.
3d at 22 (“Because sections
776.05 and
776.032 address the use of
justifiable force in the context of a criminal prosecution, the doctrine of in
pari materia requires that we read them together and attempt to
harmonize them.”)....
...construction to discern legislative intent. See Bautista [v.
State,
863 So. 2d 1180, 1185 (Fla. 2003)].
Florida Statute
776.012(1) reads: “A person is justified in
the use of deadly force . . . [.]” and Florida Statute
776.032(1)
grants immunity to “A person who uses force ....
...[the] use of statutory construction doctrines, maxims and
tools.
(footnote omitted).
Having concluded, as a matter of law, that the officer in the instant case
was eligible to seek Stand Your Ground immunity under sections
776.012(1) and
776.032(1), the circuit court applied its findings of fact to
conclude that the officer was entitled to Stand Your Ground immunity:
The last question to address is whether the defendant’s use
of force in this case was objectively unreasonable....
...findings, the Court concludes
that the [officer’s] application of deadly force in the instant
case was objectively reasonable.
....
This Court therefore finds that the [officer] is entitled to
immunity under F.S. 776.032 as a result of the justifiable use
of deadly force pursuant to F.S....
...2. The Parties’ Arguments on Appeal
a. The State’s Arguments
The state primarily argues in this appeal that the circuit court
improperly granted immunity as a matter of law to the officer pursuant to
sections
776.012(1) and
776.032(1).
According to the state, because the officer was attempting an arrest,
Caamano is factually on point and, pursuant to Caamano, the officer was
not permitted to claim immunity pursuant to sections
776.012(1) and
776.032(1), which applies generally to all persons using force.
Instead, the state argues, because the officer was attempting an arrest,
he was required to proceed pursuant to the more specific section
776.05(1), which applies to law enforcement...
...According to the state, section
776.05(1) allowed the officer to assert a
claim of qualified immunity, for which the officer would not be entitled to
7
a pre-trial evidentiary hearing and dismissal as permitted under section
776.032(1), but only an affirmative defense at trial to be determined by the
factfinder.
To support that point, the state cites to a number of civil cases holding
that where issues of fact exist regarding whether an officer is entitled to...
...reverse the [circuit] court order because where the actions of
a law enforcement officer using force in the line of duty are
concerned, the specific language of [section]
776.05[(1)]
should apply, not the general language of [section]
776.032[(1)]....
...is for the jury not the judge, the order granting immunity must
be reversed and this case remanded for a jury trial.
b. The Officer’s Arguments
In response, the officer argues the circuit court properly granted
immunity to him pursuant to sections
776.012(1) and
776.032(1).
Specifically, the officer argues that based on the circuit court’s findings of
fact that he was responding to an emergency and not making an arrest,
he was entitled to absolute immunity under section
776.032(1), and not
merely an affirmative defense at trial under section
776.05(1). According
to the officer, a court may not deny a motion seeking absolute immunity
under section
776.032(1) simply because factual disputes exist.
The officer also argues, to the extent Caamano found that allowing a
law enforcement officer to seek absolute immunity under section
776.032(1) would abrogate section
776.05(1), Caamano was wrongly
decided....
...According to the officer, even though section
776.05(1) allows law
enforcement officers, charged with the use of excessive force during an
arrest, to claim the right of self-defense at trial, law enforcement officers
still may seek absolute immunity under section
776.032(1) before a trial.
To support this argument, the officer seeks to harmonize sections
776.032(1) and
776.05(1) by proposing the following example:
A police officer goes to arrest a suspect....
...d
District stated “provides qualified immunity for a law enforcement officer’s
use of force in making an arrest.” (emphasis added). Id. Caamano later
amended his motion to allege instead that he was immune from criminal
prosecution pursuant to section 776.032(1), the Stand Your Ground law.
The county court denied the amended motion. Id. at 19-20. The county
court found that because Caamano was a law enforcement officer, and it
was undisputed that the alleged crime occurred during the course of an
arrest, he was not entitled to invoke the protection described in section
776.032(1). Id. at 20.
Caamano then petitioned the circuit court for a writ of prohibition,
arguing that because section 776.032(1) does not expressly exclude law
enforcement officers from its protection, he was entitled to invoke the
protection of either statute. Id.
The circuit court granted Caamano’s petition, finding “nothing in the
law that prevents [Caamano] from asserting immunity pursuant to Section
776.032[(1)].” Id. The circuit court’s order vacated the county court’s
order and directed the county court to conduct an evidentiary hearing
pursuant to section 776.032(1).
The state filed a petition for writ of certiorari, arguing that the circuit
court departed from the essential requirements of the law.
The Second District granted the petition, concluding that the circuit
court departed from the essential requirements of the law in vacating the
county court’s order....
...3d at 749.
Here, the State argues that the circuit court, acting in its
appellate capacity, departed from the essential requirements
of the law by applying the incorrect law. Specifically, the State
argues that by ordering the county court to conduct an
evidentiary hearing under section
776.032[(1)], the Stand
Your Ground statute, rather than proceeding under section
776.05[(1)], the statute specific to law enforcement, the circuit
court stripped section
776.05[(1)] of meaning. We agree.
....
[T]he circuit court departed from the essential
requirements of the law by applying the incorrect law. . . .
Because sections
776.05[(1)] and
776.032[(1)] address the use
of justifiable force in the context of a criminal prosecution, the
doctrine of in pari materia requires that we read them together
and attempt to harmonize them.
11
Upon such a re...
...We hold that
the specific language of section
776.05[(1)], titled “Law
enforcement officers; use of force in making an arrest,” must
apply to the behavior of law enforcement officers during the
course of an arrest, rather than the language of section
776.032[(1)], which applies generally to the public at large.
We agree with the State’s argument that holding otherwise
would render the specific statute meaningless....
...ed by competent
substantial evidence, and we review the circuit court’s legal conclusions
de novo. See Joseph v. State,
103 So. 3d 227, 229-30 (Fla. 4th DCA 2012)
(in reviewing a trial court’s order on a motion to dismiss claiming immunity
under section
776.032(1), “[t]he trial court’s factual findings are entitled
to deference and must be supported by competent substantial evidence.
. . . The trial court’s legal conclusions are reviewed de novo.”). To the
extent we review the circuit court’s interpretation of sections
776.012(1),
776.032(1), and
776.05(1), our review also is de novo. See Bretherick v.
State,
170 So. 3d 766, 771 (Fla. 2015) (an issue of statutory interpretation
under section
776.032(1) is reviewed de novo).
We conclude the circuit court’s findings of fact are supported by
competent substantial evidence....
...attention.
That is, whether Caamano correctly held that if an officer is entitled to any
immunity during the course of an arrest, then such protection must flow
from section
776.05, which applies specifically to law enforcement officers,
rather than section
776.032, which applies generally to the public at large.
We disagree with Caamano....
...harm to himself or herself or another or to prevent the imminent
commission of a forcible felony, is not limited to invoking a defense under
section
776.05(1), but is also permitted to seek immunity from criminal
prosecution under sections
776.012(1) and
776.032(1).
In reaching our holding, we agree with the circuit court that sections
776.012(1)’s and
776.032(1)’s plain language dictates this conclusion....
...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[.]
§
776.012(1), Fla. Stat. (2013) (emphasis added).
13
Section
776.032(1) provided, in pertinent part:
A person who uses force as permitted in s....
...is
justified in using such force and is immune from criminal
prosecution and civil action for the use of such force . . . . As
used in this subsection, the term “criminal prosecution”
includes arresting, detaining in custody, and charging or
prosecuting the defendant.
§ 776.032(1), Fla....
...(2013).
As the circuit court found, “There is nothing in the term ‘a person’ that
is unclear or ambiguous. A law enforcement officer under any reasonable
understanding of our language qualifies as ‘a person.’” Because sections
776.012(1)’s and
776.032(1)’s plain language is clear and unambiguous,
the officer in this case was permitted to seek immunity from criminal
prosecution under sections
776.012(1) and
776.032(1)....
...Then, the doctrine of in pari materia applies.”
105
So. 3d at 20 (emphasis added). Respectfully, to suggest that the doctrine
of in pari materia applies in every case is incorrect as a matter of law. As
the circuit court correctly found in this case, because sections
776.012(1)’s
and
776.032(1)’s plain language is clear and unambiguous, Caamano
“need not have gone into the doctrine of in pari materia at all.” See English
v....
...language or employ principles of statutory construction to determine
legislative intent.”) (emphasis added).
Having concluded, as a matter of law, that the officer in the instant case
was eligible to seek Stand Your Ground immunity under sections
776.012
and
776.032, we also conclude, based on the circuit court’s findings of
fact, that the officer was entitled to Stand Your Ground immunity....
...14
We also agree with the officer’s argument in response to the state’s
secondary argument on appeal. That is, as the officer argues, a court may
not deny a motion seeking immunity under sections
776.012(1) and
776.032(1) simply because factual disputes may exist. See Dennis v. State,
51 So. 3d 456, 462 (Fla. 2010) (“Section
776.032 does not limit its grant
of immunity to cases where the material facts are undisputed.”).
Conclusion
Based on the foregoing, we affirm the circuit court’s final order granting
the officer’s amended motion to dismiss the indictment against him for
manslaughter with a firearm. Specifically, we affirm the circuit court’s
conclusion that the officer was entitled to immunity from prosecution
under sections
776.012(1) and
776.032(1), Florida Statutes (2013), more
commonly known as Florida’s “Stand Your Ground” law....
...HIMSELF OR HERSELF OR ANOTHER OR TO PREVENT THE
IMMINENT COMMISSION OF A FORCIBLE FELONY, IS
LIMITED TO INVOKING A DEFENSE UNDER SECTION
776.05(1), OR IS ALSO PERMITTED TO SEEK IMMUNITY
FROM CRIMINAL PROSECUTION UNDER SECTIONS
776.012(1) AND
776.032(1), FLORIDA STATUTES (2013),
MORE COMMONLY KNOWN AS FLORIDA’S “STAND YOUR
GROUND” LAW.
Affirmed; conflict certified; question of great public importance certified.
GROSS and KUNTZ, JJ., concur....
CopyPublished | Florida 3rd District Court of Appeal
...prohibition directing the trial
court to relieve him from criminal prosecution for attempted first degree murder
for a shooting that occurred on June 23, 2015, on grounds that he is immune from
prosecution under Florida’s Stand Your Ground Law, section 776.032 of the
Florida Statutes (2017). For the following reasons, we deny the petition.
Before Sexton filed his motion below arguing that he is immune from
criminal prosecution, the Florida Legislature amended section 776.032, effective
June 9, 2017, by adding subsection (4), which states:
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).
§ 776.032(4), Fla....
...sion in
Love v. State,
247 So. 3d 609 (Fla. 3d DCA 2018), the trial court rejected Sexton’s
assertion that subsection (4) applied retroactively to conduct occurring prior to the
amendment’s June 9, 2017 effective date. Applying the version of section
776.032
in effect when the shooting occurred (on June 23, 2015), the trial court found that
Sexton had failed to meet his burden of demonstrating, by a preponderance of the
evidence, that he was entitled to immunity from criminal prosecuti...
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Aug 11, 2021
...had erred in dismissing his arrest claims. A panel of this Court re-
manded the case for the district court to address in the first instance
Davis’ argument that, in light of Florida’s “Stand Your Ground”
law, Fla. Stat. §§
776.012(2),
776.032, the officers lacked actual prob-
able cause to arrest him because his use of deadly force was legally
justified....
...or threatening to use such force is necessary to prevent imminent
death or great bodily harm to himself . . . .” Fla. Stat. §
776.012(2).
That person is also “immune from criminal prosecution” for the
use of such deadly force. Id. §
776.032(1). The statute defines
“criminal prosecution” to include “arresting, detaining in custody,
and charging or prosecuting the defendant.” Id.; see Dennis v.
State,
51 So. 3d 456, 462 (Fla. 2010) (“Section
776.032(1) expressly
grants defendants a substantive right to not be arrested, detained,
charged, or prosecuted as a result of the use of legally justified
force.”)....
...ate Filed: 08/28/2023 Page: 22 of 56
22 Opinion of the Court 20-11994
determines that there is probable cause that the force that was used
or threatened was unlawful.” Fla. Stat. § 776.032(2).
In Rankin v....
...in the criminal context, for the simple reason that
there appears to be no way to do so in most cases.
For example, the statute purports to grant im-
munity from arrest, detention, and prosecution.
§ 776.032(1), Fla....
CopyPublished | District Court of Appeal of Florida
he has misinterpreted the retroactivity of section
776.032(4), Florida Statutes (2017).
CopyPublished | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 12201, 2010 WL 3269229
...Horwitz, Orlando, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee. COHEN, J. John Charles Gray, Jr., appeals the denial of his dispositive motion to dismiss predicated on section 776.032, Florida Statutes (2007)....
...Gray was charged with aggravated assault with a firearm after he allegedly pointed his handgun at the driver of another vehicle and threatened to shoot him. Asserting that he was immune from prosecution because he was acting in self defense, Gray moved to dismiss the charge pursuant to section 776.032 and Florida Rule of Criminal Procedure 3.190(c)(4)....
...Gray now appeals the denial of his motion to dismiss and renews the argument he raised in his petition for writ of certiorari. Consistent with the opinion denying Gray's motion for certification, we agree that Peterson,
983 So.2d 27, sets out the proper procedure for addressing a motion to dismiss which raises section
776.032 immunity....
CopyPublished | Florida 4th District Court of Appeal | 2013 WL 4080997, 2013 Fla. App. LEXIS 12646
PER CURIAM. The petition for writ of prohibition, which argues self-defense immunity from prosecution under section 776.032, Florida Statutes (2010), is denied....
CopyPublished | Florida 2nd District Court of Appeal
...battery causing great bodily harm with a deadly weapon. See §§
775.087(1),
784.045(1)(a), Fla. Stat. (2016). Sullivan was convicted following a jury trial and
sentenced to seven years in prison. On appeal, Sullivan argues in part that the 2017
amendment to section
776.032, Florida Statutes, creating subsection (4), should apply
retroactively to his case and that his motion to dismiss based on immunity from
prosecution should be reconsidered under the statute as amended. This court's recent
opinion concluding that the 2017 amendment to section
776.032, Florida's Stand Your
Ground law, is procedural in nature and thus should be applied retroactively to pending
cases necessarily controls our decision here....
...instructions that if the trial court determines that Sullivan is not entitled to immunity, the
court shall deny his motion and reinstate Sullivan's conviction and sentence. We
recognize that the Third District Court of Appeal has recently held that the 2017
amendment to section 776.032 imposes a new legal burden on the State such that it
should be treated as a substantive change in the law which does not apply retroactively;
we therefore certify conflict with Love v....
CopyPublished | Florida 1st District Court of Appeal
...Pena, Judge.
April 30, 2025
ROWE, J.
Roger Dale Raulerson petitions for a writ of prohibition,
following the circuit court’s order denying his motion to dismiss.
Raulerson claimed immunity from criminal prosecution under
section 776.032(1), Florida Statutes (2019), asserting that he was
acting in self-defense and also seeking to prevent escape while
making a citizen’s arrest when he twice shot into the victims’ car.
We deny the petition....
...weapon, (2) shooting or throwing a deadly missile into an occupied
1
vehicle, (3) aggravated assault with a deadly weapon, and
(4) criminal mischief. Raulerson moved to dismiss counts one, two,
and four, asserting self-defense immunity under section
776.032(1)....
...statutory
immunity under SYG.” Nadell,
363 So. 3d at 1138–39. The
supreme court ultimately amended Florida Rule of Appellate
Procedure 9.130(a)(3) to allow “civil defendants to appeal nonfinal
orders that deny claims of immunity brought under section
776.032, Florida Statutes (2024).” See In re Amends....
...Husband was driving away from the scene and Raulerson twice
fired his weapon into Husband’s car, Raulerson had an objectively
reasonable belief that he faced an imminent threat of great bodily
harm or death.
To raise a prima facie claim of self-defense immunity under
section 776.032(1), Raulerson had to show that the elements of
justifiable force were met....
...controverted facts that the inferior tribunal has jurisdiction to
determine” (citing English,
348 So. 2d at 298) (emphasis
supplied)); cf. Tsavaris v. Scruggs,
360 So. 2d 745, 752 (Fla. 1977)
(noting in seminal immunity-from-prosecution case that review of
4 Section
776.032(4), Florida Statutes, in fact expressly gives
the trial court this jurisdiction, requiring it to hold a “pretrial
immunity hearing,” where the defendant must raise a “prima facie
claim of self-defense immunity from criminal pro...
...18
constitutional or statutory power to do so. My answer is a firm no,
as I explain next.
II
A
A person has immunity when his use of force is legally
justified. See § 776.032(1), Fla....
...5
As already discussed, this immunity’s availability bears on a
trial court’s jurisdiction to allow a criminal prosecution to proceed,
and the court has statutory jurisdiction to resolve a factual dispute
bearing on that availability. See § 776.032(4), Fla....
CopyPublished | Florida 2nd District Court of Appeal
...), Florida Statutes (2010), one
count of improper exhibition of a firearm pursuant to section
790.10, Florida Statutes
(2010), and one count of openly displaying a firearm under section
790.053. Mr.
Dooley asserted a claim of immunity pursuant to section
776.032(1), Florida Statutes
(2010) ("A person who uses or threatens to use force as permitted in s....
...Both sections are part of the same defense; but they held subtle—and
important—distinguishing characteristics, a point we explained at length in Little v.
State,
111 So. 3d 214 (Fla. 2d DCA 2013):
We conclude that the plain language of sections
776.012,
776.013, and
776.032 can be understood as
granting immunity to a person who qualifies under either
section
776.012(1) or
776.013(3)....
...or to
prevent the imminent commission of a forcible felony."
(Emphasis added.)
As for criminal immunity, a person engaged in an
unlawful activity would not be entitled to claim immunity
under section
776.032(1) based on the use of force as
permitted in section
776.013(3). But section
776.013(3)
provides only one means of obtaining immunity under
section
776.032(1). Section
776.012(1) provides another
means of obtaining immunity for individuals who would not
qualify for immunity under section
776.013(3). And section
776.032(1) expressly provides for immunity based on the
use of force as permitted in section
776.012.
Id....
CopyPublished | Florida 2nd District Court of Appeal
...See §
784.045(1)(a), Fla. Stat. (2015). Mr. Feaster was convicted following a
jury trial and sentenced to sixty-two months in prison. Prior to trial, Mr. Feaster filed a
motion to dismiss the information charging him with aggravated battery based
on section
776.032, Florida Statutes (2015), Florida's "Stand Your Ground" law. After
an evidentiary hearing, the trial court denied the motion after applying the statutory
burden of proof in effect at that time. On appeal, Mr. Feaster argues that the 2017
amendment to section
776.032, creating subsection (4), see ch....
...nd that his motion to dismiss
based on immunity from prosecution should be reconsidered under the statute as
amended. In Martin v. State, 43 Fla. L. Weekly D1016, D1017-18 (Fla. 2d DCA May 4,
2018), this court concluded that the 2017 amendment to section 776.032 is procedural
in nature and thus should be applied retroactively to pending cases....
...If, on the other hand, the trial court determines after the hearing
that Mr. Feaster is not entitled to immunity, it shall enter an order containing its findings
and reinstate Mr. Feaster's conviction.
The Third and Fourth District Courts of Appeal have held that section
776.032, as amended, does not apply retroactively in pending cases, and we therefore
-2-
certify conflict with Hight v....
CopyPublished | Florida 2nd District Court of Appeal | 2013 WL 1776820, 2013 Fla. App. LEXIS 6705
...attempted to locate Mr. Egido’s adult son to serve him with a child support warrant. Mr. Egido filed a motion to dismiss the case, claiming that he was entitled to immunity under various sections of chapter 776, Florida Statutes (2007), including section 776.032(1), which he argued immunized him from criminal prosecution for his justifiable use of force on the officer....
CopyPublished | Florida 2nd District Court of Appeal
...Heim and Bilal
Ahmed Faruqui, Assistant Attorneys
General, Tampa, for Appellee.
VILLANTI, Judge.
Max Newton Horton appeals his conviction and sentence for one count of
attempted manslaughter by act with a firearm. Based on the 2017 amendment to
section 776.032, Florida Statutes, and this court's decision in Martin v....
...During the incident, the
firearm discharged, although there was disputed evidence as to whether Horton pulled
the trigger or whether the firearm discharged during a struggle over it.
Horton filed a motion to dismiss the charge against him based on the
statutory immunity provided by sections
776.032,
776.013, and
776.012, Florida
Statutes (2015)....
...In this appeal, Horton contends that he is entitled to a new Stand Your
Ground hearing at which the State would have the burden of proof. He premises this
argument on this court's decision in Martin, in which we held that the 2017 amendment
to section 776.032, which changed the burden of proof at Stand Your Ground hearings,
-2-
was procedural rather than substantive and therefore applied retroactively to any case
that was not yet final....
...If, on the other hand, the trial court
determines that Horton is not entitled to immunity, it should enter an order reflecting its
findings and reinstate Horton's conviction and sentence. See id.
In addition, we note that the Third and Fourth District Courts of Appeal
have held that section 776.032, as amended, does not apply retroactively in pending
cases....
CopyPublished | Florida 2nd District Court of Appeal
...on of a weapon.
1
In 2005, the Florida Legislature substantially amended the affirmative
defense of justifiable use of force by abrogating the common law duty to retreat before
resorting to deadly force and by enacting section
776.032, which grants immunity from
criminal prosecution and civil action to those who use force justifiably in self-defense.
Section
776.032 was amended effective June 17, 2014, to provide immunity to those
who use or threaten to use force as permitted in sections
776.012,
776.013, or
776.031.
Ch....
...Collectively, the amendments are called
the Stand Your Ground Law.
-2-
Dooley contends that the instruction and the State's argument were
erroneous because at the time of the offense in 2010 and at the time of trial in 2012,
sections
776.032(1) and
776.012, Florida Statutes (2010), did not condition stand your
ground immunity on whether the defendant was engaged in unlawful activity. Moreover,
on April 10, 2013, months before appellate counsel filed the initial brief on December
16, 2013, this court held that sections
776.032(1) and
776.012(1) permit a person
engaged in unlawful activity to claim stand your ground immunity....
CopyPublished | Florida 1st District Court of Appeal | 2014 WL 1612649, 2014 Fla. App. LEXIS 5853
CLARK, J. Petitioner seeks a writ of prohibition following the trial court’s denial of his pretrial motion to determine immunity from criminal prosecution, pursuant to section 776.032, Florida Statutes....
...ce when he fled the scene and exchanged gunfire with the buyers as he retreated. One of the buyers was shot and killed, resulting in a charge of murder against Petitioner. Petitioner’s pre-trial motion sought the statutory immunity provided for in section 776.032(1), Florida Statutes, which provides in pertinent part: 776.032 Immunity from criminal prosecution and civil action for justifiable use of force.— (1) A person who uses force as permitted in s....
...Of the three avenues for immunity, the use of force as permitted in section
776.013 is the only avenue limited to persons “not engaged in an unlawful activity.” 2 In this case, Petitioner’s motion in the circuit court specifically sought the immunity provided by section
776.032(1) based on his use of force as permitted in section
776.013(3), Florida Statutes....
...ndisputed and he admitted that his use of force occurred during, or as he retreated from, a botched illegal drug-sale transaction. The circuit court ruled, and we agree, that under the undisputed facts presented at the motion hearing, immunity under section
776.032(1) was not available to Petitioner on the basis of his use of force as permitted in section
776.013(3). State v. Hill,
95 So.3d 434 (Fla. 4th DCA 2012). While not raised by Petitioner in this Court or the circuit court proceedings, we note that statutory immunity under section
776.032(1), Florida Statutes, based *1162 on the defensive use of force as permitted in sections
776.012(1) and
776.031, is potentially available even to a person engaged in an unlawful activity at the time. See State v. Wonder,
128 So.3d 867 (Fla. 4th DCA 2013); Little v. State,
111 So.3d 214 (Fla. 2d DCA 2013). In order to sufficiently raise a claim for immunity under section
776.032(1), the defendant must identify the particular statutory basis or avenue (section
776.012;
776.013;
776.031; or any combination thereof) upon which he or she relies to justify the force used....
...After alleging the particular statutory basis for a claim of immunity, the defendant must then prove the facts (reasonable belief that such force is necessary, etc.) as required by the statute upon which he or she relies to allow the court to determine whether section 776.032(1) immunity attaches. Writ DENIED. THOMAS and ROBERTS, JJ., concur. . Section 776.032, Florida Statutes, is one of the statutes created by the 2005 legislation popularly referred to as the "Stand Your Ground law.” Committee Substitute for Committee Substitute for Senate Bill No....
CopyPublished | Florida 4th District Court of Appeal
...s
who were detaining him following a Baker Act 1 referral. Defendant
asserted immunity under the Stand Your Ground statute for using force
“necessary to prevent imminent death or great bodily harm” and moved to
dismiss the case. §§
776.012(2),
776.032, Fla. Stat. (2021). The trial court
granted Defendant’s motion. We reverse because the undisputed evidence
combined with section
776.032’s clear language shows that such
immunity does not apply in this circumstance.
The officers responded to a call alleging that Defendant had been
suicidal....
...convincing evidence that the officers had a right to take Defendant into
custody under the Baker Act in the first place and dismissed the case.
This appeal followed.
We employ a mixed standard of review when examining a motion to
dismiss based on sections
776.012 and
776.032....
...We agree.
2
Generally, Florida law confers immunity from prosecution, without the
obligation to retreat, on persons who use deadly force if reasonably
believing such force is “necessary to prevent imminent death or great
bodily harm.” §
776.012(2), Fla. Stat. (2021); see also §
776.032(1) Fla.
Stat....
...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.
§ 776.032(1), Fla....
...As
such, the trial court ruled that the officers’ use of excessive force while
armed warranted Defendant’s use of lethal force in legitimate self-defense
of life and property. However, a distinction exists between an officer’s
official duties, which are protected under section
776.032, and an officer’s
legal duties, which are subject to a myriad of legal challenges and defenses
to a prosecution, or perhaps through a civil rights action. See Finkelstein
v. State,
157 So. 3d 1085, 1088 (Fla. 1st DCA 2015) (“Any challenge to the
legality of the search and seizure of Petitioner is separate from the
determination of immunity under section
776.032, Florida Statutes.”).
Whether the officers exceeded the scope of their legal duties by
improperly detaining Defendant or failing to comply with criteria set forth
in the Baker Act is irrelevant to whether Stand Your Ground immunity can
be applied....
...3
detention, Defendant’s emphasis on the officers’ “lawful execution” of legal
duties is misplaced. As the First District explained in Finkelstein, the
phrase “performance of his or her official duties” in section 776.032 differs
from the phrase “lawful execution of a legal duty” in statutes defining
resisting arrest and other obstruction crimes....
...such, and the officers
responded to a 911 call about Defendant being suicidal. Thus, even if the
officers unlawfully apprehended Defendant under the Baker Act, the
statute only requires law enforcement to be acting within their official
duties. See § 776.032(1), Fla....
CopyPublished | Florida 2nd District Court of Appeal
...ravated assault with
a firearm. He pleaded no contest to the reduced charge of improper exhibition of a
firearm, a first-degree misdemeanor, reserving the right to appeal the denial of his
motion to dismiss based on the Stand Your Ground statute, section 776.032, Florida
Statutes (2018)....
CopyPublished | Florida 4th District Court of Appeal
...1st DCA 1991) (noting that
defendant raised theory of self-defense for the first time at trial). The
officer also incorrectly stated that he could not arrest appellant without
“overwhelming evidence” that appellant did not act in self-defense when in
fact the correct standard was probable cause. See § 776.032(2), Fla....
CopyPublished | District Court of Appeal of Florida
moved to dismiss the information based on section
776.032, Florida Statutes (2017), Florida's “Stand
CopyPublished | District Court of Appeal of Florida
Florida's "Stand Your Ground" law. See §
776.032, Fla. Stat. (2016). After conducting an evidentiary
CopyPublished | Florida 4th District Court of Appeal
...bt that
the defendant’s use of force was not justified, is consistent with this
Court’s precedent and gives effect to the legislative intent.”).
Months later, the legislature amended the burden of proof in a Stand
Your Ground hearing. See § 776.032(4), Fla....
...We now conclude that, at
least in part, Hight can no longer be applied based on the Florida Supreme
Court’s holding in Love,
286 So. 3d at 190. See also Rivera v. State, No.
4D16-4328,
2020 WL 1162686, at *2 (Fla. 4th DCA Mar. 11, 2020) (same).
In Love, the court held that section
776.032(4), Florida Statutes (2017), “is
a procedural change in the law and applies to all Stand Your Ground
immunity hearings conducted on or after the statute’s effective date.” 286
So....
