final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Suwannee County. David W.
Thomas, Public Defender, and Barbara J. Busharis, Assistant
Public Defender, Tallahassee, for Appellant.
Moody, Attorney General, and Virginia Chester Harris,
Assistant Attorney General, Tallahassee, for Appellee.
appeal, the defendant raises two issues. First, he argues
that he is entitled to a new trial based on the trial
court's failure to sustain his objections to questions
asked by the State during its cross-examination. Second, he
argues that he is entitled to a new self-defense immunity
hearing under the Stand-Your-Ground statutes because the
trial court failed to apply the proper burden of proof. 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. On appeal, the appellant argues that the trial
court failed to make that ruling. However, the trial court
stated that regardless of who had the burden, the appellant
was not entitled to immunity. This ruling implies that the
trial court made a ruling under both standards. Because the
trial court applied the correct standard, the trial court did
not err. The appellant also argues that the trial court
failed to assess the evidence presented by the defense when
it ruled on his immunity claim. However, that issue was not
properly preserved for appeal because the appellant failed to
raise that issue to the trial court. See Rodriguez v.
State, 609 So.2d 493, 499 (Fla. 1992) ("It is well
settled that the specific legal ground upon which a claim is
based must be raised at trial and a claim different than that
raised below will not be heard on appeal.") Accordingly,
we affirm the appellant's judgment and sentence.
Thomas, C.J., and Lewis, J., concur; Roberts, J., concurs
with written opinion.
Roberts, J., concurring.
concur with the majority's opinion, but write separately
to 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.
Aviles-Manfredy v. State, 44 Fla.L.Weekly D187 (Fla.
1st DCA January 7, 2019) (adopting the procedure that the
trial court must hold a new Stand-Your-Ground hearing as
stated in Martin v. State, 43 Fla.L.Weekly D1016
(Fla. 2d DCA May 4, 2018)). However, the use of that
procedure conflicts with the purpose of the immunity hearing,
which is to provide a defendant with a procedural mechanism
that allows him to present his self-defense claim early
rather than force him to wait until trial.
has long acknowledged the fundamental right of its citizens
to use force to defend themselves or others. Art. I, §
8(a), Fla. Const. The essential elements of self-defense have
largely remained the same; to wit, a person may use deadly
force when it is reasonably necessary to prevent imminent
death or great bodily harm to the person or to another
person. § 776.012, Fla. Stat. Self-defense was and is an
affirmative defense in which the one asserting self-defense
is required to establish a prima facie case of the
elements of the self-defense claim. The burden then rests on
the State to establish that the claim is not justified
"to the exclusion of every reasonable doubt," which
is consistent with the State's burden in every criminal
case. See § 90.302, Fla. Stat.; Grady v.
State, 176 So. 431, 431 (Fla. 1937) (the burden of
establishing a defendant's guilt rests with the State).
However, prior to 2005, the claim of self-defense could only
be presented as an affirmative defense at trial.
2005, the Legislature strengthened the right to self-defense
when it passed Chapter 2005-27, Laws of Florida. That bill
changed the application of the law of self-defense in three
major ways. First, it eliminated the duty to retreat when
attacked outside the home before using lawful deadly force.
Ch. 2005-27, §§ 2-3, Laws of Fla. Second, the bill
created a presumption that a person had "reasonable fear
of imminent . . . death or great bodily harm" if the
person was attacked in his or her home or conveyance. Ch.
2005-27, § 1, Laws of Fla. Third, the bill provided
immunity from ...