section 776.032 immunity in Florida

2022Love, 286 So. 3d at 186; see Kumar v. Patel, 227 So. 3d 557, 559 (Fla. 2017) (“The Legislature, however, did not suggest procedural mechanisms for invoking and determining Stand Your Ground immunity.”); Bretherick v. State, 170 So. 3d 766, 775 (Fla. 2015) (“These courts have adopted a procedure in which the defendant bears the burden of proof, by a preponderance of the evidence at a pretrial evidentiary hearing, in the context of their analogous immunity laws.”); Dennis v. State, 51 So. 3d 456, 459 (Fla. 2010) (“The trial court recognized that no procedure had yet been enacted for deciding cla

2019SECTION 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 [Flor

2022Love, 286 So. 3d at 186; see Kumar v. Patel, 227 So. 3d 557, 559 (Fla. 2017) (“The Legislature, however, did not suggest procedural mechanisms for invoking and determining Stand Your Ground immunity.”); Bretherick v. State, 170 So. 3d 766, 775 (Fla. 2015) (“These courts have adopted a procedure in which the defendant bears the burden of proof, by a preponderance of the evidence at a pretrial evidentiary hearing, in the context of their analogous immunity laws.”); Dennis v. State, 51 So. 3d 456, 459 (Fla. 2010) (“The trial court recognized that no procedure had yet been enacted for deciding cla

2018However, 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.

2017Spires, 180 So.3d at 1176 ; Mederos v. State, 102 So.3d 7, 11 (Fla. 1st DCA 2012); Ham, 17 So.3d at 805 .

2015Mederos v. State, 102 So.3d 7, 11 (Fla. 1st DCA 2012).

2014The Second District certified conflict with Hill "Mo the extent that the ... decision ... can be read as holding that a defendant who is engaged in an unlawful activity is not enti-tied to immunity under section 776.032(1).” Little, 111 So.3d at 222 .

2014Accord Little v. State, 111 So.3d 214, 221 (Fla. 2d DCA 2013) (holding that a person engaged in an unlawful activity, such as possession of an illegal firearm by a felon, would not be entitled to claim immunity under section 776.032(1) based on the use of force as permitted in section 776.013(3)).

2017The State gave notice of appeal. • Appellate Analysis In a motion to dismiss for immunity under section 776.032, Florida Statutes, “[t]he trial court’s factual findings are entitled to deference and must be supported by competent substantial evidence.” Joseph v. State, 103 So.3d 227, 220 (Fla. 4th DCA 2012).

2017See Joseph v. State, 103 So.3d 227, 229-30 (Fla. 4th DCA 2012) (in reviewing a trial court’s order, on a motion to dismiss claiming immunity under section 776.032(1), “[t]he trial court’s factual findings are entitled to deference and must be supported by competent substantial evidence....

2014See State v. Yaqubie, 51 So.3d 474 (Fla. 3d DCA 2010).

2014An evidentiary hearing is required In State v. Yaqubie, 51 So.3d 474, 476 (Fla. 3d DCA 2010), this court confirmed that “section 776.032 is a true immunity provision, not merely an affirmative defense, which requires a trial court to adjudicate disputed fact issues rather than passing them on to a jury as it would an affirmative defense.” Thus, determining such an immunity claim on a motion for summary judgment is not appropriate.

2009Also, the judge observed that he was bound by our decision in Velasquez v. State, 9 So.3d 22, 24 (Fla. 4th DCA 2009), which held that “[w]hen rule 3.190(c)(4) is used as the vehicle to raise the immunity issue under section 776.032, that rule provides the procedural framework by which the court makes its determination.” Therefore, the court was required to deny the motion, because the state’s traverse placed essential material facts in dispute.

2009But see Velasquez v. State, 9 So.3d 22, 24 (Fla. 4th DCA 2009) (holding that a motion to dismiss based on section 776.032 immunity is governed by rule 3.190(c)(4) and should be denied if factual disputes exist; certifying conflict with Peterson).

2023See Jefferson v. State, 264 So. 3d 1019, 1023 (Fla. 2d DCA 2018) (finding certiorari jurisdiction where the petitioner argued the ruling deprived him of a proper hearing on his claim to immunity from prosecution).

2022See Casanova v. State, 46 Fla. L. Weekly D2326 , 2021 WL 4978408 (Fla. 3d DCA October 27, 2021); State v. Cassaday, 315 So. 3d 705 (Fla. 4th DCA 2021); Rogers v. State, 303 So. 3d 1266 (Fla. 5th DCA 2020); Jefferson v. State, 264 So. 3d 1019 (Fla. 2d DCA 2018). 7 objected and moved to strike the motion because it failed to contain sufficient allegations to meet the threshold requirement for raising a prima facie claim of immunity under section 776.032(4) (providing: “[O]nce a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial imm

2022Love, 286 So. 3d at 186; see Kumar v. Patel, 227 So. 3d 557, 559 (Fla. 2017) (“The Legislature, however, did not suggest procedural mechanisms for invoking and determining Stand Your Ground immunity.”); Bretherick v. State, 170 So. 3d 766, 775 (Fla. 2015) (“These courts have adopted a procedure in which the defendant bears the burden of proof, by a preponderance of the evidence at a pretrial evidentiary hearing, in the context of their analogous immunity laws.”); Dennis v. State, 51 So. 3d 456, 459 (Fla. 2010) (“The trial court recognized that no procedure had yet been enacted for deciding cla

2022Love, 286 So. 3d at 186; see Kumar v. Patel, 227 So. 3d 557, 559 (Fla. 2017) (“The Legislature, however, did not suggest procedural mechanisms for invoking and determining Stand Your Ground immunity.”); Bretherick v. State, 170 So. 3d 766, 775 (Fla. 2015) (“These courts have adopted a procedure in which the defendant bears the burden of proof, by a preponderance of the evidence at a pretrial evidentiary hearing, in the context of their analogous immunity laws.”); Dennis v. State, 51 So. 3d 456, 459 (Fla. 2010) (“The trial court recognized that no procedure had yet been enacted for deciding cla

2025See Finkelstein v. State, 157 So. 3d 1085, 1088 (Fla. 1st DCA 2015) (“Any challenge to the legality of the search and seizure of Petitioner is separate from the determination of immunity under section 776.032, Florida Statutes.”).

2025See Edwards v. State, 351 So. 3d 1142 , 1148-49 (Fla. 1st DCA 2022).

2022Love, 286 So. 3d at 186; see Kumar v. Patel, 227 So. 3d 557, 559 (Fla. 2017) (“The Legislature, however, did not suggest procedural mechanisms for invoking and determining Stand Your Ground immunity.”); Bretherick v. State, 170 So. 3d 766, 775 (Fla. 2015) (“These courts have adopted a procedure in which the defendant bears the burden of proof, by a preponderance of the evidence at a pretrial evidentiary hearing, in the context of their analogous immunity laws.”); Dennis v. State, 51 So. 3d 456, 459 (Fla. 2010) (“The trial court recognized that no procedure had yet been enacted for deciding cla

2018Cf. Little v. State, 111 So. 3d 214, 217-18 (Fla. 2d DCA 2013) ("The Stand Your Ground law . . . grants criminal immunity to persons using force as permitted in sections 776.012, 776.013, or 776.031."); Rosario v. State, 165 So. 3d 852, 854 (Fla. 1st DCA 2015) ("Florida's Stand Your Ground law is intended to establish a true immunity from charges and does not exist as merely an affirmative defense."); see also Dennis v. State, 51 So. 3d 456, 462 (Fla. 2010) ("[S]ection 776.032 contemplates that a defendant who establishes entitlement to the statutory immunity will not be subjected to trial.").

2018Then, in Bretherick v. State, 170 So. 3d 776, 779 (Fla. 2015), the supreme court clarified that the defendant bears the burden of proving entitlement to immunity by a preponderance of the evidence. -3- amendment's temporal application.2 See R.A.M. of S. Fla., Inc. v. WCI Cmtys., Inc., 869 So. 2d 1210, 1216 (Fla. 2d DCA 2004) (describing rule of statutory construction "which establishes a presumption against the retroactive application of substantive law—as distinct from procedural or remedial law—in the absence of a clear expression of legislative intent that the statute be given retroactive e

2015See Dennis v. State, 51 So.3d 456, 462-63 (Fla.2010) (explaining that the appropriate procedural vehicle to raise immunity under section 776.032 is a pretrial motion to dismiss under rule 3.190(b), Florida Rules of Criminal Procedure, and for the trial court to then conduct an evidentiary hearing to consider the factual disputes); State v. Vino, 100 So.3d 716, 717 (Fla. 3d DCA 2012) (holding that “[w]hen a defendant invokes the statutory immunity, the trial court must hold a pre-trial evidentiary hearing to determine if the preponderance of the evidence warrants immunity”).

2015Brown v. State, 135 So.3d 1160, 1161-62 (Fla. 1st DCA 2014) (noting that statutory immunity under section 776.032(1), based on sections 776.012, “is potentially available even to a person engaged in an unlawful activity at the time”); see also State v. Wonder, 39 Fla. L.

2014See Ramos v. Wright Superior, Inc., 610 So.2d 46, 48 (Fla. 3d DCA 1992) (confirming that “summary judgment is proper only when there is a complete absence of genuine issues of material fact”).

2014See State v. Wonder, 128 So.3d 867 (Fla. 4th DCA 2013); Little v. State, 111 So.3d 214 (Fla. 2d DCA 2013).

2013See Pompano Horse Club v. State, 93 Fla. 415 , 111 So. 801, 805 (1927) (“[T]he word ‘or’ is usually, if not always, construed judicially as a disjunctive unless it becomes necessary in order to conform to the clear intention of the Legislature to construe it conjunctively as meaning ‘and.’ ”).

2013See Pompano Horse Club v. State, 93 Fla. 415 , 111 So. 801, 805 (1927) (“[T]he word ‘or’ is usually, if not always, construed judicially as a disjunctive unless it becomes necessary in order to conform to the clear intention of the Legislature to construe it conjunctively as meaning ‘and.’ ”).