KEY TERMS (Meta data):

“Ammoright, Stand your Gound, Second Amendment, United States, Gun, immunity, prima facie claim, self-defense, criminal prosecution, trial court, pretrial, roommate, burden of proof, clear and convincing evidence, entitlement, asserting, disprove, evidentiary burden, motion to dismiss, facie, Dictionary, facially, evidentiary hearing, courts, immunity from prosecution, ordinary meaning, use of force, cross-examination, speeding, proven”


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 because § 776.032(4), Fla. Stat. (2017), required the trial court to first determine the facial sufficiency of petitioner’s motion to dismiss under Fla. R. Crim. P. 3.190(b) asserting a claim for Stand Your Ground immunity, and, if it found the motion facially sufficient, to then conduct an evidentiary hearing where the State would have the burden to overcome petitioner’s claim by clear and convincing evidence; The trial court erred by imposing an evidentiary burden on petitioner to establish a “prima facie claim” of self-defense in order to trigger the State’s burden to “overcome” that claim “by clear and convincing evidence.”


Petition granted; order quashed.


In a criminal information, the State charged that petitioner committed second-degree murder of his roommate on September 2, 2017. Petitioner filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(b), asserting Stand Your Ground immunity from prosecution because he acted in justifiable self-defense, as defined in section 776.012, in stabbing his roommate. Specifically, the motion asserted that petitioner and his roommate “frequently had alcohol infused arguments” and that during these arguments his roommate regularly armed himself with a baseball bat and threatened to kill petitioner. Because of his roommate’s behavior, petitioner kept a knife on his bedside table. As for the day of the events underpinning petitioner’s second-degree murder charge, petitioner claimed that he awoke in his bedroom to discover his intoxicated roommate’s hand in petitioner’s pants pocket, where petitioner kept his money. This triggered a physical struggle between petitioner and his roommate. Petitioner claimed that his roommate was on top of him when they both reached for petitioner’s knife. He further claimed that he feared for his life as they struggled over the knife. The struggle continued throughout the residence. While in the living room area, the roommate threatened to throw boiling hot tea at petitioner. The struggle made its way to the backyard, where the men lost their balance and fell to the ground. In the process of falling to the ground, petitioner gained control of the knife and stabbed his roommate, causing the roommate’s death. He claimed that he went to the front of the house and flagged down several people to call law enforcement and medical personnel. 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. Accordingly, the State asserted, petitioner must testify under oath and be subject to cross-examination by the State at an evidentiary hearing. This prompted the trial court to ask petitioner’s counsel the following question: “If 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 eliminated a criminal defendant’s evidentiary burden to prove his entitlement to Stand Your Ground immunity from criminal prosecution. Petitioner’s counsel responded that petitioner would not testify at the hearing and that he would rely on the four corners of the motion unless the State was prepared to present witnesses. He subsequently filed a petition for writ of prohibition in our court.


As an initial matter, HN1 prohibition is the appropriate remedy when the appellate court determines on the merits that the defendant is entitled to immunity under the Stand Your Ground law, the reason being that the lower court has no authority to proceed against an immunized defendant . Here, however, petitioner challenges the procedure the circuit court employed in denying his motion to dismiss, the upshot of which was that the court denied the motion without requiring the State to put on evidence. Consequently, The court could not discern whether petitioner is entitled to immunity on the merits, and therefore prohibition is not the proper vehicle to review the alleged error. Rather, the trial court’s ruling in this case is more properly the subject of a proceeding in certiorari. 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). Accordingly, The court considered his petition under our certiorari jurisdiction. See Fla. R. App. P. 9.040(c) “If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy.” holding certiorari was appropriate when necessary “for petitioners to receive the benefits conferred upon them and, in the estimation of the legislature, upon the citizens of Florida by the statute” and “relief by direct appeal would be no relief at all”.


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. The court agreed. As an initial matter, The court noted that the trial court made no factual findings below. Accordingly, The court presented with the interpretation of section 776.032, which “is a purely legal matter and therefore subject to the de novo standard of review.”

Brief History of Florida’s Stand Your Ground Law:

The State asserts that the person—here, the petitioner—asserting the yet to be proven immunity claim has the evidentiary burden to prove it. The court need not look further than the text of section 776.032(4) to reject that interpretation. First, The court established that a “prima facie claim” is a fact or right that has yet to be disproven. But
  1. See Little v. State, 111 So. 3d 214, 216 n.1 (Fla. 2d DCA 2013) (explaining that “the supreme court has consistently held” that prohibition “is an appropriate vehicle to review orders denying motions to dismiss criminal prosecutions based on immunity”).
  2. Horn v. State, 17 So. 3d 836, 837 (Fla. 2d DCA 2009), reviewing trial court’s denial of Stand Your Ground immunity under certiorari jurisdiction, noting “The court write to discuss and approve of the trial court’s procedures in determining that petitioner was not entitled to immunity under section 776, Florida Statutes (2007); See also Pearlstein v. Malunney, 500 So. 2d 585, 587 (Fla. 2d DCA 1986)
  3. Kasischke v. State, 991 So. 2d 803, 807 (Fla. 2008) (quoting Kephart v. Hadi, 932 So. 2d 1086, 1089 (Fla. 2006)). 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 be raised by the defendant at a pretrial immunity hearing.


The court recognized and appreciated 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. The court interpreted 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 . The court interpreted the legislature’s requirement that an accused raise a prima facie claim of immunity at a pretrial immunity hearing in conformity with the procedure set forth in Dennis. In sum, procedurally, a claim for immunity from criminal prosecution pursuant to section 776.032(4) must first be raised, as petitioner did here, by the criminal defendant in a pretrial rule 3.190(b) motion to dismiss. The trial court is then to determine whether, at first glance and assuming all facts as true, the alleged facts set forth in the motion support the elements of self-defense in either section 776.012, 776.013, or 776.031. If the trial court determines that the defendant’s claim of self-defense satisfies the requirements set forth in the applicable self-defense statute raised by the accused, the State shall then present clear and convincing evidence to overcome the self-defense claim. Link to the text of the note The court was mindful that there will be situations where the accused is the only 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.3Link to the text of the note But our result here is mandated by the text of section 776.032(4). The 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 bear the evidentiary burden of overcoming, by bringing forth clear and
4. See City of Hollywood v. Lombardi, 770 So. 2d 1196, 1202 (Fla. 2000) (“The legislature is presumed to know the judicial constructions of a law when enacting a new version of that law [and] . . . is presumed to have adopted prior judicial constructions of a law unless a contrary intention is expressed in the new version.” (quoting Brannon v. Tampa Tribune, 711 So. 2d 97, 100 (Fla. 1st DCA 1998).
convincing evidence, an accused’s facially sufficient, prima facie claim of self-defense immunity from criminal prosecution at a pretrial hearing. Accordingly, The court granted the petition and quash the trial court’s order summarily denying the motion to dismiss


by Admin-Ammoright time to read: 8 min