final until disposition of timely filed motion for rehearing.
of Original Jurisdiction - Prohibition. Lower Tribunal No.
J. Martinez, Public Defender, and Jeffrey Paul DeSousa and
John Eddy Morrison, Assistant Public Defenders, for
Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant
Attorney General, and Amit Agarwal, Solicitor General
(Tallahassee), for respondent.
& Kirk, PLLC, Davis Cooper and David H. Thompson
(Washington, D.C.), for the NRA Freedom Action Foundation, as
FERNANDEZ, LOGUE and SCALES, JJ.
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). For the
reasons set forth below, we deny the petition.
November 26, 2015, Love and a group of women were involved in
an altercation, which lasted approximately three minutes,
outside a Miami-Dade County nightclub. 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.
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.
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. Because no procedure or
mechanism had been promulgated yet by Florida's
Legislature regarding how to assess a defendant's
immunity claim, the Florida Supreme Court, through statutory
interpretation, determined that defendants had the burden of
proof in pretrial immunity hearings and that they had to
prove by a preponderance of the evidence that their "use
of force was justified, as specified by statute."
Id. at 775. Thereafter, in June 2017, the
Legislature passed Ch. 2017-72, Laws of Florida, to amend the
Stand Your Ground statute. The Legislature 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
burden of proof by clear and convincing evidence is on the
party seeking to overcome the immunity from criminal
prosecution provided in subsection (1).
became effective on June 9, 2017.
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. The trial court
added that only the Florida Supreme Court had the authority
to amend the burden of proof. The trial court thus applied
the burden of proof applicable before the 2017 ...