            FIRST DISTRICT COURT OF APPEAL
                   STATE OF FLORIDA
                 _____________________________

                         No. 1D17-1978
                 _____________________________

DARNELL PERKINS WASHINGTON,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Duval County.
Angela M. Cox, Judge.

                         July 15, 2019


RAY, C.J.

     In 2014, Darnell Perkins Washington was charged with
attempted second-degree murder, following a shooting that took
place during an altercation with his mother’s boyfriend.
Washington claimed that he acted in self-defense and moved to
dismiss the charge under Florida’s Stand-Your-Ground law,
section 776.032, Florida Statutes. The trial court denied the
motion, concluding that Washington failed to meet his burden of
proving that he was entitled to immunity from prosecution. The
case proceeded to trial, and Washington was convicted of the
lesser crime of aggravated assault with a firearm.

    On appeal, Washington argues that he is entitled to a new
Stand-Your-Ground immunity hearing based on an intervening
change in the law. At the time of Washington’s immunity
hearing, Florida case law interpreting section 776.032 required
that Washington prove entitlement to immunity by a
preponderance of the evidence. Bretherick v. State, 170 So. 3d
766, 775 (Fla. 2015). While this appeal was pending, the Florida
Legislature amended section 776.032 to change both the burden
and quantum of proof required for establishing entitlement to
immunity. See Ch. 2017-72, § 1-2, Laws of Fla. Now, once a
defendant makes a prima facie claim of immunity, the State must
prove by clear and convincing evidence that the defendant is not
entitled to immunity. § 776.032(4), Fla. Stat. (2017).

      This Court has previously held that the 2017 amendment to
section 776.032 is procedural in nature and therefore applies
retroactively to pending cases. Aviles-Manfredy v. State, 44 Fla.
L. Weekly D187, 2019 WL 116471 (Fla. 1st DCA Jan. 7, 2019)
(citing Mayers v. State, 43 Fla. L. Weekly D2800, 2018 WL
6598716 (Fla. 1st DCA Dec. 17, 2018)); see also Martin v. State,
43 Fla. L. Weekly D1016, 2018 WL 2074171 (Fla. 2d DCA May 4,
2018) (holding that the 2017 amendment to section 776.032 is
procedural in nature and thus should be applied retroactively to
pending cases). Other district courts of appeal have held that the
amendment operates only prospectively. See Love v. State, 247
So. 3d 609 (Fla. 3d DCA 2018) (applying the 2017 amendment
prospectively after concluding it was a substantive change in the
law and certifying conflict with Martin), review granted, SC18-
747, 2018 WL 3147946 (Fla. Jun. 26, 2018); Hight v. State, 253
So. 3d 1137 (Fla. 4th DCA 2018) (agreeing with the Third District
in Love). As we have done before, we certify conflict with Love
and Hight.

     Based on this Court’s precedent, Washington is entitled to
relief. We therefore reverse Washington’s conviction and remand
for the trial court to conduct a new immunity hearing under
section 776.032, as amended. If, after the hearing, the court
determines that Washington is entitled to immunity from
prosecution, it should enter an order to that effect and dismiss
the information with prejudice. If, however, the court concludes
that Washington is not entitled to immunity, it should enter an
order with its findings and reinstate Washington’s conviction. We
reject Washington’s other issues without further comment.

                                2
    REVERSED and REMANDED.

KELSEY and JAY, JJ., concur.

                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andy Thomas, Public Defender, and Danielle Jorden, Assistant
Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Steven Edward Woods,
Assistant Attorney General, Tallahassee, for Appellee.




                               3
