          IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FIFTH DISTRICT

                                                NOT FINAL UNTIL TIME EXPIRES TO
                                                FILE MOTION FOR REHEARING AND
                                                DISPOSITION THEREOF IF FILED


VICTORIA A. REID,

               Petitioner,

 v.                                                    Case No. 5D17-241

STATE OF FLORIDA,

               Respondent.

________________________________/

Opinion filed March 23, 2017

Petition for Writ of Prohibition,
Jeffrey Mahl, Judge.

Gregory W. Eisenmenger, of Eisenmenger,
Blaue & Peters P.A., Viera, for Petitioner.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Carmen F. Corrente,
Assistant Attorney General, Daytona
Beach, for Respondent.


PER CURIAM.

       Victoria A. Reid (“Petitioner”) petitions for issuance of a writ of prohibition to

prevent her from being tried for aggravated battery with a firearm while inflicting great

bodily harm. This case arose after Petitioner shot her husband, James Wesley Reid

(“Reid”), in the leg during a domestic dispute. Petitioner argues that she is immune from

prosecution pursuant to section 776.032, Florida Statutes (2016), commonly referred to
as “Stand Your Ground.” This section provides in pertinent part that “[a] person who uses

or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified

in such conduct and is immune from criminal prosecution.” § 776.032(1), Fla. Stat.

(2016). Section 776.012, Florida Statutes (2016), further provides that “[a] person is

justified in using or threatening to use force, except deadly force, against another when

and to the extent that the person reasonably believes that such conduct is necessary to

defend himself or herself against the other’s imminent use of unlawful force.”            §

776.012(1), Fla. Stat. (2016). There is no duty to retreat under these circumstances. §

776.012(1), Fla. Stat. (2016). Petitioner contends that she was in reasonable fear that

Reid was reaching for a firearm when she shot him.

       An evidentiary hearing was held regarding Petitioner’s Stand Your Ground

immunity. The State called as its only witnesses Reid and the 911 operator who took the

emergency call placed by Petitioner at the time of the shooting. In addition, the State

introduced the tape of the 911 call. Petitioner was the only other witness who testified

during the hearing. The evidence and testimony reveal the following facts. At the time of

the shooting, Petitioner and Reid had been married for over fourteen years. For the first

eight years of their marriage, Reid suffered from alcohol abuse issues. During this time,

he engaged in multiple acts of physical violence against Petitioner. On several occasions,

Reid held a firearm to Petitioner’s head. Reid became sober for five years but began to

drink again shortly before the shooting occurred.         Petitioner testified that Reid’s

resumption of drinking frightened her.

       Petitioner and Reid kept firearms in every room of their home, including one under

the cushion of the love-seat in the living room and one in a wooden case on the coffee




                                             2
table. On the evening in question, Petitioner and Reid entered into a discussion about

their marriage that escalated into a heated argument. Reid reached in the direction of the

love-seat cushion. Petitioner testified that he verbally threatened to shoot her and that

she believed he was reaching for the gun to kill her.

      Petitioner grabbed the firearm on the coffee table, which discharged and struck

Reid in the leg. She testified that the firearm went off accidentally. Reid also testified

that he believed the gun discharged accidentally because it had no safety. Petitioner

immediately called 911. The transcript of the call reveals that Petitioner told the 911

operator, “My husband, he is injured. He threatened to shoot me and I shot him.”

      Reid initially filed a petition with the trial court to prevent contact with Petitioner.

However, he later testified that he believed Petitioner thought he was moving towards the

firearm, although he was reaching for their dog. Reid stated that the shooting occurred

solely because Petitioner feared he was about to harm her. For example, the record

reveals that he was specifically asked, “Do you have any reason to believe that this

incident occurred in any way other than a result of your wife’s fear that you were about to

do bodily harm by threatening her?” Reid answered, “No.” He further testified that any

statements he had made to the contrary were the result of the heavy pain medication he

had been given following the shooting. Any statements Reid had previously made about

the incident were not admitted into evidence at the hearing.

      Despite the parties’ testimony, the trial court entered an order denying Stand Your

Ground immunity to Petitioner. In the order, the trial court found that both Petitioner and

Reid agreed in their testimony that Petitioner “believed [Reid] was reaching for a gun that

was located near the parties” at the time Reid was shot. Nevertheless, the trial court




                                             3
concluded that the greater weight of the evidence presented at the hearing indicated that

Petitioner shot Reid because of the argument rather than out of fear that he was reaching

for a firearm.

       We conclude that the trial court erred in denying Stand Your Ground immunity to

Petitioner because no factual disputes were raised in this case. See Peterson v. State,

983 So. 2d 27, 29 (Fla. 1st DCA 2008) (“[W]hen immunity under this law is properly raised

by a defendant, the trial court must decide the matter by confronting and weighing only

factual disputes.”). Both parties testified that Petitioner was afraid that Reid was reaching

for a firearm when she shot him. They also testified that Reid had committed acts of

domestic violence against Petitioner while he was under the influence of alcohol and that

he had resumed drinking shortly before the shooting. The statements made by Petitioner

during the 911 call were consistent with the testimony presented at the hearing and

indicated that she believed Reid was about to shoot her.

       Accordingly, because the evidence presented to the trial court at the Stand Your

Ground hearing established that Petitioner reasonably believed that her conduct was

necessary to defend herself against Reid’s imminent use of unlawful force and because

there were no factual disputes regarding that issue, we grant the petition for writ of

prohibition.


       PETITION GRANTED.

SAWAYA, COHEN, and WALLIS, JJ., concur.




                                             4
