Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mency v. State

Florida Court of Appeals, First District

June 12, 2019

Corry Mency, 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 Suwannee County. David W. Fina, Judge.

          Andy Thomas, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.

          Ashley Moody, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.

          PER CURIAM.

         In this 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.

         Affirmed.

          B.L. Thomas, C.J., and Lewis, J., concur; Roberts, J., concurs with written opinion.

          Roberts, J., concurring.

         I 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.

         Self-Defense

         Florida 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.

         The Stand-Your-Ground Act

         In 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.