NOT
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
FILED, DETERMINED.
Application for Review of the Decision of the District Court
of Appeal - Statutory Validity/Certified Direct Conflict of
Decisions Third District - Case No. 3D17-2112 (Miami-Dade
County)
Carlos
J. Martinez, Public Defender, and Maria E. Lauredo, Chief
Assistant Public Defender, and Jeffrey Paul DeSousa,
Assistant Public Defender, Eleventh Judicial Circuit, Miami,
Florida, for Petitioner
Ashley
Moody, Attorney General, and Amit Agarwal, Solicitor General,
Edward Wenger, Chief Deputy Solicitor General, and
Christopher Baum, Deputy Solicitor General, Office of the
Attorney General, Tallahassee, Florida, for Respondent
Jason
Gonzalez of Shutts & Bowen LLP, Tallahassee, Florida; and
Stephen P. Halbrook of Shutts & Bowen LLP, Fairfax,
Virginia, for Amici Curiae Unified Sportsmen of Florida, Inc.
David
H. Thompson and Davis Cooper of Cooper & Kirk, PLLC,
Washington, District of Columbia, for Amicus Curiae National
Rifle Association Freedom Action Foundation
Glen
P. Gifford, Assistant Public Defender, Second Judicial
Circuit, Tallahassee, Florida; and Michael Ufferman of
Michael Ufferman Law Firm, P.A., Tallahassee, Florida, for
Amici Curiae Florida Public Defender Association, Inc. and
Florida Association of Criminal Defense Lawyers
Penny
H. Brill of Theodore F. Brill, P.A., Plantation, Florida, for
Amicus Curiae League of Prosecutors - Florida
Glenn
Burhans, Jr., and Kelly A. O'Keefe of Stearns Weaver
Miller Weissler Alhadeff & Sitterson, P.A., Tallahassee,
Florida, for Amicus Curiae Giffords Law Center to Prevent Gun
Violence
Darren
A. LaVerne, Daniel M. Ketani, and Timur Tusiray of Kramer
Levin Naftalis & Frankel, LLP, New York, New York; and
Sean R. Santini of Santini Law, Miami, Florida, for Amici
Curiae for Everytown for Gun Safety and Brady Center to
Prevent Gun Violence
Ricardo J. Bascuas, Coral Gables, Florida, for Amicus Curiae
University of Miami School of Law - Federal Appellate Clinic
CANADY, C.J.
The
certified conflict issue in this case is whether section
776.032(4), Florida Statutes (2017), which effective in June
2017 altered the burden of proof at pretrial immunity
hearings under Florida's "Stand Your Ground"
law, applies to pending cases involving criminal conduct
alleged to have been committed prior to the effective date of
the statute. In the decision below and the certified conflict
case, the district courts framed this issue as presenting a
"retroactivity" question that itself turns on
whether section 776.032(4) is procedural or substantive.
This
Court has for review Love v. State, 247 So.3d 609,
613 (Fla. 3d DCA 2018), in which the Third District Court of
Appeal concluded that section 776.032(4) was "a
substantive change in the law, and therefore does not apply
retroactively." The Third District also concluded that
article X, section 9 of the Florida Constitution precluded
the statute from being applied retroactively.
Id.[1]According to the Third District, this lack
of retroactivity meant that section 776.032(4) was
inapplicable in the case, even though the defendant's
immunity hearing took place after the statute went into
effect. Id. at 610, 612. In the certified conflict
case of Martin v. State, 43 Fla.L.Weekly D1016,
D1018, 2018 WL 2074171, at *4 (Fla. 2d DCA May 4, 2018), the
Second District Court of Appeal concluded that section
776.032(4) "is procedural in nature and, therefore,
retroactive in application; that, as such, it applies to
pending cases, including those on appeal." The Second
District also concluded that article X, section 9 did not bar
retroactive application of the statute. Id. at D1017
n.5. According to the Second District, this retroactivity
meant that the defendant who had already been convicted prior
to the statute's effective date was "entitled to a
new immunity hearing under the amended procedure of the
statute." Id. at D1018; see id. at
D1016. This Court granted discretionary review of
Love and has jurisdiction. See art. V,
§ 3(b)(4), Fla. Const.
We
agree with Martin that section 776.032(4) is a
procedural change in the law and is not categorically barred
by article X, section 9 from applying in pending cases.
Accordingly, we quash Love. However, we disagree
with Martin's all-or-none conclusion that the
new procedures apply in all pending cases, even where the
immunity hearing was held prior to the statute's
effective date. The determination of whether a new procedure
applies in a pending case generally depends on the posture of
the case. Here, the relevant event is the immunity hearing,
and section 776.032(4) applies to those immunity hearings
taking place on or after the statute's effective date.
Because there is no indication the Legislature intended the
statute to undo pre-effective-date immunity hearings, we
disapprove Martin's decision to order a new
immunity hearing in that case.
We
begin by briefly reviewing the Stand Your Ground law and the
statutory amendment at issue. We next present the facts and
procedural history of Love and discuss
Martin. We then explain our decision in this case,
including our conclusion that applying section 776.032(4) in
a pending case does not entail a retroactive application of
the statute.
I.
SECTION 776.032(4)
Under
the Stand Your Ground law, a person is generally "immune
from criminal prosecution and civil action" when that
person justifiably uses or threatens to use force under
certain circumstances. § 776.032(1), Fla. Stat. (2017);
see ch. 2005-27, Laws of Fla. The criminal immunity
"includes arresting, detaining in custody, and charging
or prosecuting the defendant." § 776.032(1), Fla.
Stat. In Dennis v. State, 51 So.3d 456, 464 (Fla.
2010), this Court held that a motion to dismiss asserting
immunity under section 776.032 "should be treated as a
motion filed pursuant to [Florida Rule of Criminal Procedure]
3.190(b)" and that the trial court should conduct a
pretrial evidentiary hearing and "decide the factual
question of the applicability of the statutory
immunity." But Dennis did not reach the issue
of burden of proof. That issue was later decided in
Bretherick v. State, 170 So.3d 766 (Fla. 2015).
Bretherick concluded that at a pretrial immunity
hearing "the defendant bears the burden of proof, by a
preponderance of the evidence, to demonstrate entitlement to
Stand Your Ground immunity." Id. at 768. The
dissent in Bretherick argued that the burden should
be the same as when a Stand Your Ground defense is presented
at trial, because "the essential nature of the
[underlying] factual question" is the same in both
settings. Id. at 779 (Canady, J., dissenting). In
other words, the burden should be on the State to
"establish[] beyond a reasonable doubt that the
defendant's conduct was not justified under the governing
statutory standard." Id.
Section
776.032(4) was the Legislature's eventual response to
Bretherick. The 2017 amendment to section 776.032
provides:
(4) 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).
§ 776.032(4), Fla. Stat. (2017); see ch.
2017-72, § 1, Laws of Fla. The Legislature thus largely
adopted the Bretherick dissent but with a
"clear and convincing" burden on the State as
opposed to the more exacting trial burden of "beyond a
reasonable doubt." In adopting this framework, the
Legislature provided that the legislation "shall take
effect upon becoming a law." Ch. 2017-72, § 2, Laws
of Fla.
II.
BACKGROUND
Petitioner,
Tashara Love, seeks review of the Third District's
decision denying her petition for writ of prohibition after
the trial court denied her motion for immunity. The relevant
facts are as follows:
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[s] (2017), asserting she was immune from prosecution
because she committed the crime while defending her daughter.
Love, 247 So.3d at 610. Love argued to the trial
court that the newly enacted amendment in section 776.032(4)
should apply to her immunity hearing. The State countered
that section 776.032(4) did not have retroactive application
and that even if it did, applying it to pending cases would
violate article X, section 9. The State argued in the
alternative that the statute violated the separation of
powers doctrine.
The
Trial ...