HCBA Lawyer Magazine Vol. 29, No. 4 | Page 34

sTand Your ground: wHaT aBouT THis 2017 aMendMenT? Criminal law Section Chairs: Justin Petredis - Law Offices of Justin Petredis, P.A. & Matthew Alex Smith - Office of the State Attorney as of now, all five district Courts of appeal have weighed in on the matter of retroactivity and, O in a not-so-shocking conclusion, there is n June 9, 2017, a legislative amendment sent shockwaves throughout the Florida criminal court system. It was the biggest procedural or substantive change in the history of the 2005 Stand Your Ground Law, which has made Florida infamous throughout the legal community. Just when everyone believed that judges and practitioners had finally mastered the ins-and-outs of Stand Your Ground, the Legislature threw the courts a procedural or substantive curveball we hadn’t seen since Sandy Koufax was on the mound for the Dodgers. First the okey-doke with the Frye versus Daubert standard — and now this? What is a lawyer or judge to do? Relax, here’s your easy guide to navigating the 2017 amendment to the SYG law. The 2017 amendment reads: “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.” The initial effect of the amend - ment is to reverse Bretherick v. State, a major split. 170 So. 3d 766 (Fla. 2015), where the Florida Supreme Court held that the defendant bears the burden of proof to demonstrate entitlement to Stand Your Ground immunity, and shift the burden of proof from the defendant to the prosecution in this pretrial immunity hearing. The second effect is to change the standard of proof from a mere preponderance of the evidence standard to a clear and convincing evidence standard. Now, in any case occurring on or after June 9, 2017, once a defendant has raised a prima facie claim of immunity, the prosecution has the burden of proving by clear and convincing evidence that the defendant is not entitled to such immunity. But what about cases that occurred before June 9, 2017? As of now, all five District Courts of Appeal have weighed in on the matter of retroactivity and, in a not-so-shocking conclusion, there is a major split. The First, Second, and Fifth DCAs have all held that the 2017 Stand Your Ground amendment is to be applied retroactively. See Boston v. State, 2018 WL, 6252895 at *1 (Fla. 1st DCA Nov. 30, 2018); Martin v. State, 2018 WL 2074171, at *2 (Fla. 2d DCA May 4, 2018); Catalano v. State, 2018 WL 3447247, at *1 (Fla. 2d DCA July 18, 2018); Fuller v. State, 257 So. 3d 521, 539 (Fla. 5th DCA 2018). Both the Third and Fourth DCAs have held that the amendment should only be applied prospectively. See Love v. State, 247 So. 3d 609, 612 (Fla. 3d DCA 2018); Bailey v. State, 246 So. 3d 555, 556 (Fla. 3d DCA 2018); Hight v. State, 253 So. 3d 1137, 1143 (Fla. 4th DCA 2018); Langel v. State, 255 So. 3d 359, 361 (Fla. 4th DCA 2018). Nota bene: According to the First, Second, and Fifth DCAs, retroactivity is to be applied to all pending cases — i.e., cases that have not yet been finalized on appeal, regardless of whether they went to trial. Great … the tricky 7-10 split. What do we do? We wait … until after oral arguments are heard by the Florida Supreme Court on March 6, 2019, and the Court renders its opinion. Author: Matthew Alex Smith – Office of the State Attorney get inVolVed in a seCtion or Committee! Join today in your member Profile at hillsbar.Com. 32 MAR - APR 2019 | HCBA LAWYER