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Hicks v. State

Florida Court of Appeals, First District

June 12, 2019

Edward Lamont Hicks, Appellant,
v.
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Duval County. Waddell A. Wallace, Judge.

          Andy Thomas, Public Defender, and Greg Caracci, Assistant Public Defender, Tallahassee, for Appellant.

          Ashley Moody, Attorney General, and Robert Quentin Humphrey and Kaitlin Weiss, Assistant Attorneys General, Tallahassee, for Appellee.

          Winsor, J.

         In 2015, Edward Hicks-then charged with attempted murder-argued he was entitled to Stand-Your-Ground immunity. At the two-day SYG hearing, he and the State presented widely divergent versions of events. Both sides agreed, though, that Hicks bore the burden of proof.

         The trial court denied the motion, concluding Hicks had not met his burden. The State later reduced the murder charge pursuant to a plea agreement, and Hicks pleaded 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). Before the amendment, the statute was silent on which side had the burden of proof, but the supreme court had held it was the defendant's burden. Bretherick v. State, 170 So.3d 766, 775 (Fla. 2015).

         Hicks now appeals the trial court's SYG decision. Arguing that the legislative change was retroactive, Hicks contends the trial court erred in assigning him the burden of proof. He asks us to reverse and instruct the trial court to reconsider the motion in light of the new law.

         Florida's DCAs have split as to whether the recent legislative change applies to offenses committed before its enactment. Compare, e.g., Martin v. State, ___ So. 3d. ___ No. 2D16-4468 (Fla. 2d DCA May 4, 2018) (amendment retroactive), with Love v. State, 247 So.3d 609 (Fla. 3d DCA) (amendment not retroactive), review granted, No. SC18-747, 2018 WL 3147946 (Fla. Jun. 26, 2018). This court has sided with those arguing the change does apply to those offenses, see Commander v. State, 246 So.3d 1303, 1303-04 (Fla. 1st DCA 2018), and the conflict is pending before the Florida Supreme Court, Love, No. SC18-747. Although Commander held the change applies regardless of when the offense occurred, it does not address a case like this one, in which the offense and the SYG hearing occurred before the legislative change. See 246 So.3d at 1304 (noting that placing burden on State was "consistent with the statute in effect at the time of the evidentiary hearing"). But regardless of the statute's applicability in that circumstance, we must affirm because the sole issue Hicks now raises on appeal- which party had the burden-is not dispositive of his case.[1]

         Generally, a defendant who pleads guilty cannot challenge his conviction on appeal. See Fla. R. App. P. 9.140(b)(2)(A); see also Lewis v. State, 262 So.3d 859, 861 (Fla. 1st DCA 2018). But a defendant who pleads guilty, like Hicks did, "may expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved." Fla. R. App. P. 9.140(b)(2)(A).

         The issue of who had the burden-the only issue Hicks now advances-is plainly not dispositive. Hicks does not ask us to hold that the trial court should have granted immunity; he asks only that we remand for "a new immunity hearing under the current evidentiary standard." Init. Br. at 30. That would mean his guilty plea would be followed by additional evidentiary proceedings leading (perhaps) to another conviction or (perhaps) to a dismissal. If Hicks won all the relief he seeks on appeal, he may (or may not) end up going to trial. And it is settled that "[a]n issue is dispositive only when it is clear that there will be no trial, regardless of the outcome of the appeal." Williams v. State, 134 So.3d 975, 976 (Fla. 1st DCA 2012); accord Morgan v. State, 486 So.2d 1356, 1357 (Fla. 1st DCA 1986).

         If we entertained Hicks's argument and agreed with him, we would have to remand for more proceedings. And that would turn this into precisely the type of piecemeal appeal that the rule and the cases that preceded it sought to prevent. See Churchill v. State, 219 So.3d 14, 16 (Fla. 2017) (noting that the court had "reasoned that the policies underlying the decision in [State v. Ashby, which preceded the rule] were 'poorly served' and 'thwarted' when a defendant was allowed to appeal nondispositive rulings because the defendant would still face the prospect of trial even if he or she prevailed on appeal, which would prolong rather than expedite resolution of the case"); see also Brown v. State, 376 So.2d 382, 384 (Fla. 1979) ("Because of the nondispositive nature of the appeal, the defendant faces the prospect of a trial even if he prevails on appeal. The inevitable is not avoided but merely postponed, thus further burdening the already severely taxed resources of our courts."). Neither rule 9.140 nor precedent applying it would allow that.

         It is true that the State stipulated that the issue of whether Hicks was entitled to immunity was dispositive. By doing so, the State agreed that if we ruled on appeal that Hicks was entitled to immunity, the State would not pursue the case further. See Churchill, 219 So.3d at 17 ("[T]he stipulation of dispositiveness establishes that the State cannot or will not continue with its prosecution if the defendant prevails on appeal."). But Hicks does not ask us to hold that he was entitled to immunity; he elected to argue only that the State should have had the burden. And the State certainly did not stipulate that if Hicks won an appeal about a nondispositive procedural matter that it would not continue to pursue its case. Indeed, both Hicks and the dissent presume the State will pursue its case: they both insist that we should remand so that the State can do just that.[2] This only confirms that the issue on appeal is not dispositive of Hicks's entire case.[3]

         We must Affirm.[4]

          Lewis, J., concurs; Kelsey, J., dissents with opinion.

          Kelsey, J., dissenting.

         Hicks lost his self-defense-immunity hearing and entered a plea in which both he and the State stipulated, and the lower court ruled, that the denial of immunity was dispositive for purposes of appeal under Florida Rule of Appellate Procedure 9.140(b)(2)(A) (allowing defendants to "expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved"). 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. This overly-narrow view is factually inaccurate. Furthermore, legally, the majority view improperly equates a new immunity hearing with prosecution so as to defeat dispositivity under rule 9.140, or alternatively finds no dispositivity because of the possibility of trial if Hicks were to lose an immunity hearing under the new statute-overlooking that the State cannot prosecute Hicks after agreeing to a plea. The majority's reasoning improperly creates new precedent precluding Hicks and similarly-situated litigants from obtaining a new immunity hearing under a more favorable burden and quantum of proof, to which they are entitled under our precedent. Moreover, the majority adopts this rationale sua sponte, without giving the parties the chance to be heard on it. Accordingly, respectfully, I dissent from the majority opinion as to both procedure and merits.

         I. Procedure.

         As to procedure, I dissent from the majority's disposition of this appeal on grounds not preserved or ruled upon below, not raised in briefing, not discussed at oral argument, and adopted without the benefit of supplemental briefing. The majority's overly-narrow view of Hicks's argument has the effect of holding that orders denying self-defense immunity cannot be appealed as part of a plea in which such orders are stipulated to be dispositive under rule 9.140(b)(2)(A). In contrast to this new rule of law, the sole issue in briefing and oral argument was whether the 2017 statutory amendment shifting the burden of proof to the State in stand-your-ground hearings should apply retroactively to this case, and Hicks made it clear that he was arguing the procedural issue to protect his substantive right to immunity. We have already resolved that issue in favor of retroactivity. Commander v. State, 246 So.3d 1303, 1303-04 (Fla. 1st DCA 2018) (holding legislative change to burden of proof in stand-your-ground hearings applies retroactively). Our position conflicts with that of other district courts, and the conflict is pending before the Florida Supreme Court. Love v. State, 247 So.3d 609 (Fla. 3d DCA) (finding amendment not retroactive), review granted, No. SC18-747, 2018 WL 3147946 (Fla. June 26, 2018). That is the sole issue preserved, briefed, and argued; and therefore we should rule in accordance with Commander, reversing and remanding for a new immunity hearing under the 2017 law, and certifying conflict with Love.

         The majority nevertheless sua sponte raises new issues and resolves the appeal on both legal and factual grounds the parties have had no opportunity to address (i.e., dispositivity in this context, and the scope of Hicks's arguments on appeal). Furthermore, the majority disposes of the appeal on grounds directly contrary to an express stipulation of dispositivity and appealability by both parties below, which the trial judge expressly and repeatedly ...


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