         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-1830
                 _____________________________

EDWARD LAMONT HICKS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Duval County.
Waddell A. Wallace, Judge.

                        August 23, 2019

          ORDER ON MOTION FOR REHEARING EN BANC

     A judge of this Court requested that this cause be reheard en
banc in accordance with Florida Rule of Appellate Procedure
9.331(d). All judges in regular active service have voted on the
request. Less than a majority of those judges voted in favor of
rehearing en banc. Accordingly, the request for rehearing en banc
is denied.

RAY, C.J., and WOLF, LEWIS, B.L. THOMAS, ROBERTS, ROWE,
OSTERHAUS, WINOKUR, and JAY, JJ., concur.

WINOKUR, J., concurs in an opinion in which WOLF, LEWIS, B.L.
THOMAS, ROBERTS, and ROWE, JJ., join.

MAKAR, BILBREY, KELSEY, and M.K. THOMAS, JJ., dissent.
MAKAR, J., dissents in an opinion in which KELSEY, J. joins.

                  _____________________________

WINOKUR, J., concurring in denial of rehearing en banc.

     I agree that Hicks has failed to show that en banc
consideration is appropriate. While I do not wish to belabor points
made in the panel majority opinion, I find that some points raised
in the consideration for en banc rehearing merit further
explication. I agree with the panel majority that Hicks has
improperly appealed a nondispositive issue, but the concept of
dispositiveness deserves further comment. The same is true for the
proposition that the State’s stipulation in this case permits review.
More fundamentally, even if this case presented no issue with
dispositiveness or reservation, Hicks would still be entitled to no
relief because he has misinterpreted the retroactivity of section
776.032(4), Florida Statutes (2017).

                         1. Dispositiveness

     The scope of the right to appeal a judgment or sentence
following a guilty or no-contest plea is clear: such an appeal is
prohibited “without expressly reserving the right to appeal a
legally dispositive issue.” § 924.051(4), Fla. Stat. The applicable
procedural rule sets forth the same requirements. Fla. R. App. P.
9.140(b)(2)(A)(i) (adding that a defendant who wishes to appeal
following a guilty or no-contest plea must “identify[] with
particularity the point of law being reserved”). 1 The requirement
that an issue appealed following a guilty plea be dispositive is no
mere procedural hurdle placed before defendants to limit review.
Instead, it is necessary to effectuate the overriding rule that a
guilty plea ends proceedings in the trial court. The dispositiveness
requirement ensures that, regardless of whether the defendant
wins or loses on appeal, the proceedings in the trial court ended
with the plea and resulting judgment.

    1 While section 924.051(4) provides this sole method for an
appeal following a guilty or no-contest plea, Rule 9.140(b)(2)(A)(ii)
permits other types of appeals following guilty or no-contest pleas
that are not relevant here.
                                 2
       The dispositiveness requirement has long been imposed to
prevent “a trial even if [the defendant] prevails on appeal.” Brown
v. State, 376 So. 2d 382, 384 (Fla. 1979). The requirement is meant
to “expedite[] resolution of the controversy,” by prohibiting what
would amount to an “interlocutory appeal.” Id. See also Tiller v.
State, 330 So. 2d 792, 793 (Fla. 1st DCA 1976) (holding that,
without a dispositiveness requirement, “appellate courts will be
placed in the untenable position of rendering advisory opinions
and the disposition of criminal cases will be unacceptably
delayed”). Thus, the central importance of the dispositiveness
requirement is that it precludes any further proceedings following
appeal. This rule makes sense, since the defendant has already
entered a guilty or no-contest plea. Further proceedings in the trial
court would be inconsistent with the finality inherent in such a
plea. See Milliron v. State, 44 Fla. L. Weekly D1475 (Fla. 1st DCA
June 7, 2019) (finding the issue nondispositive because, even if
relief were granted on some counts, “there will still be a ‘trial of
the case’ or further proceedings for the remaining counts”); Sloss
v. State, 917 So. 2d 941, 942 (Fla. 5th DCA 2005) (“These motions
. . . are in no way dispositive as a reversal would merely result in
remand for further proceedings, including the possibility of a
trial.”); Martinez v. State, 420 So. 2d 637, 638 n.2 (Fla. 3d DCA
1982) (“The test for dispositiveness . . . is whether our decision in
favor of either party would end the case.”).

     This intent to prevent further trial-court proceedings is so
strong that even an issue that is not in fact dispositive of the case
may be appealed, as long as the State stipulates that no further
proceedings will follow an appeal. See Churchill v. State, 219 So.
3d 14, 18 (Fla. 2017) (noting that “the appellate court’s ruling on
the issue reserved for review, even one that is not legally
dispositive as contemplated by Brown, will bring an end to the
litigation”) (emphasis added). Again, the central value of this rule
is that an appeal “will bring an end to the litigation.” Id. This is
true regardless of whether the appealed issue can be properly
characterized as “dispositive,” because the State can stipulate to
the appeal of a nondispositive issue. Put another way, the State
can waive the requirement that an appealed issue be dispositive,
but if it does, the appeal still must end the litigation.



                                 3
     It should be noted that Churchill did not break new ground in
its ruling that the appellate court must accept a reserved issue as
dispositive if the State has stipulated to dispositiveness. This rule
of law has been applied in this Court for nearly forty years. In
Jackson v. State, 382 So. 2d 749 (Fla. 1st DCA 1980), aff’d, 392 So.
2d 1324 (Fla. 1981), the State argued that the appellate court could
not review a suppression issue because it was not dispositive. This
Court rejected the argument because, by stipulating to the
dispositiveness of the reserved issue below, it essentially waived
any argument on appeal that the issue was not dispositive.
Jackson, 382 So. 2d at 750. See also Zeigler v. State, 471 So. 2d 172,
176 (Fla. 1st DCA 1985) (accepting a stipulation of dispositiveness
because it demonstrated that “each [party] is willing to abide by
the appellate consequences” of the stipulated issue (quoting Finney
v. State, 420 So. 2d 639, 642 (Fla. 3d DCA 1982)). While Churchill
did reverse a contrary ruling from another district, it is a mistake
to suggest that it establishes a rule of law in this district that did
not already exist for decades. 2

    2  The dissent to this order contends that there had been “[t]wo
lines of inconsistent cases” in this Court on the issue of whether an
appellate court could reject a stipulation of dispositiveness, and
that Churchill resolved this inconsistency. Dissenting op. at 12
(citing Beermunder v. State, 191 So. 3d 1000, 1001 (Fla. 1st DCA
2016) (Makar, J. concurring)). I disagree. Since the 1980s the
consistent law in this district has been that an issue is legally
dispositive (and therefore appealable following a guilty plea) if the
State stipulates below that the issue is dispositive, and that the
appellate court cannot reject the appeal if it finds that the issue
was not actually dispositive. The only case cited in Beermunder for
the opposite rule was Morgan v. State, 486 So. 2d 1356 (Fla. 1st
DCA 1986). While it is true that the Morgan court rejected a State
stipulation of disposiviteness, it did so because “an essential part
of the stipulation was that, in the event that such rulings were
reversed on appeal, the state would be entitled to proceed to trial.”
Id. at 1357. In other words, the parties actually stipulated only to
appealability, but not to dispositiveness, because they agreed to
further proceedings if the defendant prevailed on appeal.
Essentially, the parties did not know what “dispositive” meant.
This Court rejected the stipulation, because no post-appeal trial
proceedings are permitted following a guilty plea. Id. at 1358. In
                                  4
     In contrast, Hicks argues that we should allow further
proceedings following this appeal. At the least, Hicks argues that
he is entitled to a new immunity hearing. He contends that an
actual trial is “unlikely,” so it meets the dispositiveness
requirement. I do not agree. An appeal of a reserved issue following
a guilty plea cannot constitute an “interlocutory appeal,” Brown,
376 So. 2d at 384, and must “bring an end to the litigation,”
Churchill, 219 So. 3d at 18. In other words, following such an
appeal, either the conviction must be affirmed, or the defendant is
discharged. Any other resolution ignores the unmistakable
meaning of the word “dispositive.” 3 The issue of whether the trial
court erred in finding that Hicks was not entitled to immunity is
plainly dispositive: if he was entitled to immunity, the prosecution
is over. In this respect, the State’s “stipulation” was unnecessary:
the issue was dispositive whether the State stipulated to that fact

this unusual context, Morgan is not inconsistent at all with
Jackson or Zeigler. I stand by my contention that Churchill merely
confirmed a rule that has been consistently applied in this district
for nearly forty years.

    3  The panel dissent concludes that Churchill permits further
proceedings on remand following appeal from a guilty plea, if the
State had stipulated to dispositiveness. Hicks v. State, 44 Fla. L.
Weekly D1525a, D1529 (Fla. 1st DCA June 12, 2019) (Kelsey, J.
dissenting) (“Churchill . . . clearly instructs that the appellate
court is not authorized to go behind a stipulation of dispositivity
and speculate about what might transpire on remand.”). I submit
this passage misreads Churchill. The Churchill court was merely
pointing out that the nondispositiveness of a reserved issue does
not prevent appellate review if the State has stipulated to
dispositiveness. That observation does not mean that an appeal of
a reserved issue following a guilty plea can result in remand for
further proceedings. Because the State stipulated to
dispositiveness, the appellate court must discharge the defendant
if the defendant prevails on appeal. Any other result ignores the
clear holding of Churchill, which states “the appellate court’s
ruling on the issue reserved for review, even one that is not legally
dispositive . . ., will bring an end to the litigation.” Churchill, 219
So. 3d at 18 (emphasis supplied).

                                  5
or not. Conversely, the question of whether the State or the
defendant bears the burden of proof at the immunity hearing
plainly does not dispose of the case. 4,5

                       2. Express reservation

     Again, I do not intend to rehash the majority opinion, in
particular here the conclusion that Hicks did not expressly reserve
the issue he raised on appeal. Suffice it to say that Hicks reserved
the substantive issue of his entitlement to immunity, which the
trial court denied. In his written plea agreement, he reserved the
“right to appeal [the] court[’]s ruling on Stand Your Ground
Hearing” (emphasis supplied). In no way did he even hint that the
procedural issue of the applicable burden of proof for his immunity
proceeding (on which the court made no “ruling”) was the issue he
planned to appeal.

    I do not accept the contention that Hicks’ reservation of his
right to appeal the court’s ruling denying immunity somehow
encompasses the issue of the proper burden of proof at the

    4   This is not an instance where the trial court stated explicitly
that the burden of proof question was dispositive. Cf. Mayers v.
State, 43 Fla. L. Weekly D2800 (Fla. 1st DCA Dec. 17, 2018) (“The
trial court held that a defendant had the burden to prove immunity
. . . and as such denied immunity to Petitioner. The trial court also
held in the alternative that had the burden of proof been on the
State, the State failed to meet its burden to show that Petitioner
was not entitled to immunity.”).

    5  When a court finds an issue appealed following a guilty plea
nondispositive, the voluntariness of the plea may come into
question. See Milliron v. State, 44 Fla. L. Weekly D1475, D1476
(Fla. 1st DCA June 7, 2019) (Winokur, J., concurring). Here, there
is no doubt that Hicks did not rely on his ability to appeal the
burden-of-proof issue when he entered his plea, because the
burden-of-proof statute on which he sought relief on appeal did not
exist at the time of the plea. There is no basis to conclude that the
failure of this appeal would in any way render Hicks’ plea
involuntary.

                                  6
immunity hearing. In this respect, the concept of issue
preservation is helpful in determining whether an issue has been
expressly reserved. An issue is not preserved for appellate review
unless it is “the specific contention asserted as legal ground for the
objection, exception, or motion below.” Steinhorst v. State, 412 So.
2d 332, 338 (Fla. 1982). Applying this rule, an appellant has not
preserved the issue of the proper burden of proof at a pretrial
hearing when the appellant raised no objection to burden of proof
below, but instead argued below that the order following the
pretrial hearing was erroneous. This argument is not the “specific
contention” asserted below. I believe this preservation analysis is
appropriate to determine the scope of a reserved issue in the
context presented here. 6

     The response to this contention seems to be that Hicks could
not have foreseen the burden-of-proof issue, as the statute
modifying it was enacted long after the immunity hearing. Because
the burden of proof amendment is retroactive, Hicks argues he
should be entitled to claim it as “expressly reserved” within the
argument that the immunity finding was erroneous. I disagree, in
part because I believe this formulation misconstrues the
retroactivity of the burden-of-proof statute.

                3. Retroactivity – two separate types

     I conclude that the “retroactivity” of the burden-of-proof
statute does not mean that it applies to a defendant in Hicks’
position. An analysis of the different types of retroactivity explains
why.

                  A. New rules of law that establish a
                   fundamental constitutional right


    6 To be clear, I do not suggest that Hicks is entitled to no relief
because he failed to preserve the burden-of-proof issue. He is
entitled to no relief because (among other reasons) he did not
reserve the burden-of-proof issue in accordance with section
924.051(4) and Rule 9.140(b)(2)(A)(i). I merely suggest that
preservation analysis helps to demonstrate that the issue is not
reserved.
                                  7
     There are two different ways that a newly-adopted legal
requirement is retroactive. The first is that the new rule of law
establishes a fundamental constitutional right that has been held
to apply retroactively. See, e.g., Witt v. State, 387 So. 2d 922, 925
(Fla. 1980). Any defendant is entitled to assert such a right, even
if his conviction is final on direct appeal. Id. Even if the two-year
limit for a motion for postconviction relief has passed, a defendant
may receive the benefit of a case or law that impacts a fundamental
constitutional right and is retroactive. See Fla. R. Crim. P.
3.850(b)(2) (providing that a defendant can seek postconviction
relief more than two years from the date the conviction is final if
“the fundamental constitutional right asserted was not established
within the period provided for herein and has been held to apply
retroactively”). An example of this type of retroactivity was the
holding of Graham v. Florida, 560 U.S. 48 (2010). See, e.g., Geter
v. State, 115 So. 3d 375, 384 (Fla. 3d DCA 2012) (stating that
Graham v. Florida applies retroactively in part because it
“categorically barred a type of sentencing after conviction for a
particular type of crime”), decision quashed on other grounds, 177
So. 3d 1266 (Fla. 2015). Defendants whose sentences were
impacted by Graham were entitled to relief, no matter how long
their convictions had been final. Id.

               B. The substantive/procedural distinction

     The second type of retroactivity concerns the distinction
between a substantive and a procedural amendment. If a new rule
of law is substantive, it is not retroactive, and a party is not
entitled to the benefit of the new rule unless it preceded the crime
or cause of action. See, e.g., Smiley v. State, 966 So. 2d 330 (Fla.
2007). For example, suppose a person commits a crime on Day 1
and the crime requires the use of any weapon. On Day 10, the law
changes so that crime now requires use of a firearm. The person’s
trial occurs on Day 20. In this case, the person is not entitled to the
benefit of the new law and can be convicted even if he used a
weapon in the crime that was not a firearm. The reason for this
result is that the change in the law was substantive: the law at the
time the crime was committed controls. See id. at 337 (holding that
substantive change in self-defense law cannot apply to conduct
occurring prior to the effective date of the amendment).


                                  8
     Suppose, on the other hand, that the new law (enacted on Day
10) changed the burden of proof for a pretrial proceeding. The
pretrial proceeding is scheduled for Day 20. Because the new law
is a procedural amendment, 7 the person is entitled to the new
burden of proof at the pretrial proceeding. It is “retroactive” to the
extent that the new law applies, even if it was not enacted until
after the person committed the crime. See, e.g., Grice v. State, 967
So. 2d 957 (Fla. 1st DCA 2007) (holding that law governing the
order of closing arguments was procedural and applied at trial
even if the crime was committed before the effective date of the
law).

     But importantly, a person who has already been convicted
following a Stand Your Ground Immunity hearing at the time the
amendment is enacted is not entitled to reversal of the conviction
on appeal. “Retroactivity” because a change is procedural only
means that a defendant is entitled to the new procedure even if the
amendment was enacted after the crime occurred, which is not
true for substantive amendments. If the immunity hearing has
already occurred, then there is no reason to reverse the conviction
in order to provide the benefit of a new procedure. 8 To suggest

    7 In making this argument, I am presuming that the burden-
of-proof change enacted in section 776.032(4) is procedural,
because that is what this Court ruled in Commander v. State, 246
So. 3d 1303 (Fla. 1st DCA 2018). I am aware that the Florida
Supreme Court is currently considering whether the amendment
should be applied retroactively, as district courts have split on the
question whether the amendment is procedural or substantive.
Love v. State, No. SC18-747, 2018 WL 3147946 (Fla. June 26,
2018). I express no opinion on this question. However, as stated
later in this opinion, my view is entirely consistent with the
Commander conclusion that burden of proof is procedural.

    8 See Shenfeld v. State, 44 So. 3d 96, 101 (Fla. 2010) (holding
that a procedural amendment concerning tolling of probation
applied because it was enacted before the defendant’s probation
expired); Kenz v. Miami-Dade Cty., 116 So. 3d 461, 463 (Fla. 3d
DCA 2013) (holding that a new statute concerning burden of
proof—enacted after the cause of action, but before trial—was
procedural, retroactive, and applied to the case); Thomas v. State,
                                  9
otherwise    confuses     “fundamental     constitutional    right”
retroactivity with “procedural amendment” retroactivity. 9
Applying one type to the other situation misconstrues retroactivity
analysis.

     Under the analysis of retroactivity set forth above, Hicks is
entitled to no relief. The amendment to section 776.032(4) was not
enacted until long after Hicks’ immunity hearing. He was no
longer entitled to an immunity hearing, so he could not seek the
benefit of a procedural rule that applies to such an immunity
hearing.

     For this reason, it is not unfair to impose the dispositiveness
and express reservation requirements to deny Hicks the benefit of
a retroactive statute because he would not have been entitled to
the benefit of the new statute even if he had gone to trial. Once a
defendant’s right to a pretrial immunity hearing was gone (i.e.,
once the defendant has actually been convicted), such a defendant
would not have been entitled to a new procedure for that pretrial
hearing. 10

662 So. 2d 1334, 1336 (Fla. 1st DCA 1995) (holding that a new
procedural sentencing law was properly applied at a sentencing
hearing that occurred just following the law’s enactment). The
procedural laws in these cases applied retroactively because the
events the laws applied to—expiration of probation, trial, and
sentencing—had not yet occurred.

    9It is for this reason that I believe Martin v. State, 43 Fla. L.
Weekly D1016 (Fla. 2d DCA May 4, 2018), was wrongly decided.

    10  Judge Roberts provides a separate but related reason why
a defendant who has already been convicted at trial has no right
to a new immunity hearing applying the new burden of proof if the
conviction occurred prior to the new burden-of-proof statute.
Mency v. State, 44 Fla. L. Weekly D1537 (Fla. 1st DCA June 12,
2019) (Roberts, J., concurring). Judge Roberts notes that a
defendant convicted at trial had his self-defense immunity claim
“fully and properly litigated” at trial, so a new immunity hearing
is unnecessary and inappropriate, regardless of the burden of proof
used at the immunity hearing. Id. at 1538. I agree.
                                 10
     In closing, I note that this position is consistent with
Commander v. State, 246 So. 3d 1303 (Fla. 1st DCA 2018). In
Commander, the amendment to section 776.032(4) became
effective after Commander committed the alleged crime, but before
his Stand Your Ground immunity hearing. Presuming the
amendment is procedural, Commander was entitled to the new
burden of proof for the immunity hearing, even though the law
change occurred after he committed the alleged crime. This is
simply not true for a defendant like Hicks, who had an immunity
hearing and was convicted long before the statute was amended.

    For these reasons, I agree with the decision to affirm Hicks’
judgment and see no reason for this Court to consider the issue en
banc.

MAKAR, J., dissenting from the denial of rehearing en banc.

     In its recent unanimous decision in Churchill v. State, 219 So.
3d 14 (Fla. 2017), our supreme court established a bright-line test:
an issue is dispositive for jurisdictional purposes in the district
courts in a conditional plea case if “the State stipulates that an
issue reserved for appeal is dispositive of the case.” Id. at 17 (citing
Fla. R. App. P. 9.140(b)(2)(A)(i), which says a defendant in such a
case “may expressly reserve the right to appeal a prior dispositive
order of the lower tribunal”). “In such circumstances, there is no
need for the trial court nor the appellate court to determine
whether a particular issue will end the case because the
stipulation of dispositiveness establishes that the State cannot or
will not continue with its prosecution if the defendant prevails on
appeal.” Churchill, 219 So. 3d at 17 (emphasis added).

     The supreme court cleared the jurisprudential fog that had
enveloped this Court for over thirty years by adopting the bright-
line test and rejecting the alternative view that an appellate panel
can second-guess a stipulation and decide on its own what’s legally
dispositive for jurisdictional purposes. See generally Beermunder
v. State, 191 So. 3d 1000, 1001 (Fla. 1st DCA 2016) (analyzing the
“[t]wo lines of inconsistent cases [that] have been cohabitating in
our Court's jurisprudence since the mid–1980s, making the
[jurisdictional] answer murky.”) (Makar, J., concurring).


                                  11
     In this case, the State at the plea hearing affirmatively
stipulated to dispositiveness, telling the trial judge unequivocally
that the statutory immunity issue “obviously . . . would be
dispositive.” That ends the jurisdictional inquiry under Churchill’s
bright-line test, such that the stipulation and plea agreement
become “binding and cannot be defeated simply because it would
be legally possible to continue to trial regardless of the outcome in
the appellate court.” 219 So. 3d at 18. Nonetheless, the panel
majority in this case in effect stiff-arms Churchill’s holding,
despite it lacking authority to parse or second-guess the clearly
stated stipulation in these circumstances. This is not a case where
the parties stipulate to a Fourth Amendment issue as dispositive
and the defendant raises only an unrelated Eighth Amendment
issues on appeal; it presents solely a run-of-the-mill Stand-Your-
Ground immunity issue.

     Because the panel majority has muddied the recently
repristinated jurisdictional waters established by Churchill, we
ought to have corrected its error via en banc review rather than
leave it to the supreme court to do so via its conflict jurisdiction.
Art. V, § 3(b)(3), Fla. Const. (providing for discretionary review
where a decision of a district court of appeal “expressly and directly
conflicts with a decision . . . of the supreme court on the same
question of law.”).

                  _____________________________

Andy Thomas, Public Defender, and Greg Caracci, Assistant
Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Robert Quentin Humphrey,
Assistant Attorney General, Tallahassee, for Appellee.




                                 12
