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
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MAR - APR 2019
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HCBA LAWYER