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Love v. State

Florida Court of Appeals, Third District

May 11, 2018

Tashara Love, Petitioner,
v.
The State of Florida, Respondent.

         Not final until disposition of timely filed motion for rehearing.

          A Case of Original Jurisdiction - Prohibition. Lower Tribunal No. 15-24308

          Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa and John Eddy Morrison, Assistant Public Defenders, for petitioner.

          Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant Attorney General, and Amit Agarwal, Solicitor General (Tallahassee), for respondent.

          Cooper & Kirk, PLLC, Davis Cooper and David H. Thompson (Washington, D.C.), for the NRA Freedom Action Foundation, as amicus curiae.

          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). For the reasons set forth below, we deny the petition.

         On 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.

         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. 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).

         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. 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 ...


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