         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.

                          June 12, 2019


WINSOR, J.

    In 2015, Edward Hicks—then charged with attempted
murder—argued he was entitled to Stand-Your-Ground immunity.
At the two-day SYG hearing, he and the State presented widely
divergent versions of events. Both sides agreed, though, that Hicks
bore the burden of proof.

     The trial court denied the motion, concluding Hicks had not
met his burden. The State later reduced the murder charge
pursuant to a plea agreement, and Hicks pleaded guilty to
aggravated battery with a deadly weapon, along with possession of
a firearm by a convicted felon. He got seven years.

     In 2017, after Hicks initiated this appeal but before he filed
his initial brief, the Florida Legislature amended section 776.032,
Florida Statutes, which governs SYG immunity. Under the
amended provision, once a criminal defendant raises “a prima facie
claim of self-defense immunity,” then “the burden of proof by clear
and convincing evidence is on the party seeking to overcome the
immunity.” Id. § 776.032(4). Before the amendment, the statute
was silent on which side had the burden of proof, but the supreme
court had held it was the defendant’s burden. Bretherick v. State,
170 So. 3d 766, 775 (Fla. 2015).

     Hicks now appeals the trial court’s SYG decision. Arguing that
the legislative change was retroactive, Hicks contends the trial
court erred in assigning him the burden of proof. He asks us to
reverse and instruct the trial court to reconsider the motion in
light of the new law.

     Florida’s DCAs have split as to whether the recent legislative
change applies to offenses committed before its enactment.
Compare, e.g., Martin v. State, -- So. 3d. -- No. 2D16-4468 (Fla. 2d
DCA May 4, 2018) (amendment retroactive), with Love v. State,
247 So. 3d 609 (Fla. 3d DCA) (amendment not retroactive), review
granted, No. SC18-747, 2018 WL 3147946 (Fla. Jun. 26, 2018).
This court has sided with those arguing the change does apply to
those offenses, see Commander v. State, 246 So. 3d 1303, 1303-04
(Fla. 1st DCA 2018), and the conflict is pending before the Florida
Supreme Court, Love, No. SC18-747. Although Commander held
the change applies regardless of when the offense occurred, it does
not address a case like this one, in which the offense and the SYG
hearing occurred before the legislative change. See 246 So. 3d at
1304 (noting that placing burden on State was “consistent with the
statute in effect at the time of the evidentiary hearing”). But
regardless of the statute’s applicability in that circumstance, we
must affirm because the sole issue Hicks now raises on appeal—
which party had the burden—is not dispositive of his case. 1



    1   Similarly, we need not decide whether (i) Hicks’s
affirmatively agreeing below that he had the burden and (ii) his
failure to object to the court’s placing the burden on him provide
alternate, independent bases to affirm. Cf., e.g., § 924.051(3), Fla.
Stat. (“An appeal may not be taken from a judgment or order of a
trial court unless a prejudicial error is alleged and is properly
                                 2
     Generally, a defendant who pleads guilty cannot challenge his
conviction on appeal. See Fla. R. App. P. 9.140(b)(2)(A); see also
Lewis v. State, 262 So. 3d 859, 861 (Fla. 1st DCA 2018). But a
defendant who pleads guilty, like Hicks did, “may expressly
reserve the right to appeal a prior dispositive order of the lower
tribunal, identifying with particularity the point of law being
reserved.” Fla. R. App. P. 9.140(b)(2)(A).

     The issue of who had the burden—the only issue Hicks now
advances—is plainly not dispositive. Hicks does not ask us to hold
that the trial court should have granted immunity; he asks only
that we remand for “a new immunity hearing under the current
evidentiary standard.” Init. Br. at 30. That would mean his guilty
plea would be followed by additional evidentiary proceedings
leading (perhaps) to another conviction or (perhaps) to a dismissal.


preserved or, if not properly preserved, would constitute
fundamental error.”); Smith v. State, 598 So. 2d 1063, 1066 (Fla.
1992) (holding that decisions announcing new rules of law “must
be given retrospective application by the courts of this state in
every case pending on direct review or not yet final,” but explaining
that “[t]o benefit from the change in law, the defendant must have
timely objected at trial if an objection was required to preserve the
issue for appellate review”); cf. also Eutzy v. State, 541 So. 2d 1143,
1145 (Fla. 1989) (“[T]here is nothing in Booth [v. Maryland, 482
U.S. 496 (1987)] which suggests that that decision should be
retroactively applied to cases in which the claim was not preserved
by a timely objection”). In other words, we need not decide
whether—as the dissent would hold—the effect of the 2017
legislation was to invalidate judgments like Hicks’s, judgments
that were final in the trial court before the legislation’s enactment,
and where the defendant had raised no issue regarding the burden.
Finally—and relatedly—we need not decide whether Hicks
“identif[ied] with particularity” the burden issue. See Fla. R. App.
P. 9.140; see also id., comm. notes (“This rule also incorporates the
holding in State v. Ashby, 245 So. 2d 225 (Fla. 1971), and is
intended to make clear that the reservation of the right to appeal
a judgment based on the plea of no contest must be express and
must identify the particular point of law being reserved; any issues
not expressly reserved are waived.” (emphasis added)).

                                  3
If Hicks won all the relief he seeks on appeal, he may (or may not)
end up going to trial. And it is settled that “[a]n issue is dispositive
only when it is clear that there will be no trial, regardless of the
outcome of the appeal.” Williams v. State, 134 So. 3d 975, 976 (Fla.
1st DCA 2012); accord Morgan v. State, 486 So. 2d 1356, 1357 (Fla.
1st DCA 1986).

     If we entertained Hicks’s argument and agreed with him, we
would have to remand for more proceedings. And that would turn
this into precisely the type of piecemeal appeal that the rule and
the cases that preceded it sought to prevent. See Churchill v. State,
219 So. 3d 14, 16 (Fla. 2017) (noting that the court had “reasoned
that the policies underlying the decision in [State v. Ashby, which
preceded the rule] were ‘poorly served’ and ‘thwarted’ when a
defendant was allowed to appeal nondispositive rulings because
the defendant would still face the prospect of trial even if he or she
prevailed on appeal, which would prolong rather than expedite
resolution of the case”); see also Brown v. State, 376 So. 2d 382, 384
(Fla. 1979) (“Because of the nondispositive nature of the appeal,
the defendant faces the prospect of a trial even if he prevails on
appeal. The inevitable is not avoided but merely postponed, thus
further burdening the already severely taxed resources of our
courts.”). Neither rule 9.140 nor precedent applying it would allow
that.

     It is true that the State stipulated that the issue of whether
Hicks was entitled to immunity was dispositive. By doing so, the
State agreed that if we ruled on appeal that Hicks was entitled to
immunity, the State would not pursue the case further. See
Churchill, 219 So. 3d at 17 (“[T]he stipulation of dispositiveness
establishes that the State cannot or will not continue with its
prosecution if the defendant prevails on appeal.”). But Hicks does
not ask us to hold that he was entitled to immunity; he elected to
argue only that the State should have had the burden. And the
State certainly did not stipulate that if Hicks won an appeal about
a nondispositive procedural matter that it would not continue to
pursue its case. Indeed, both Hicks and the dissent presume the
State will pursue its case: they both insist that we should remand




                                   4
so that the State can do just that. 2 This only confirms that the
issue on appeal is not dispositive of Hicks’s entire case. 3

    We must AFFIRM.4


    2 We do not understand why the dissent says we hold nobody
can plead guilty while reserving a SYG issue. We do not. Had Hicks
argued here that the trial court should have granted immunity, we
would address that argument (a dispositive argument). But Hicks
has abandoned that appellate argument, raising instead only a
plainly nondispositive issue.
    3  We cannot accept the dissent’s view that further delay for
supplemental briefing is warranted. Nor can we accept the
dissent’s view that we are acting unfairly by “sua sponte rais[ing]
new issues.” There is a difference between raising new grounds for
reversal (which we should not do, see Anheuser-Busch Cos., Inc. v.
Staples, 125 So. 3d 309, 312 (Fla. 1st DCA 2013)), and affirming
based on any basis the record supports (which we must do, see
Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 645
(Fla. 1999)). It is the appellant’s burden to show we must reverse,
and he cannot meet that burden without overcoming all bases for
affirmance. See Applegate v. Barnett Bank of Tallahassee, 377 So.
2d 1150, 1152 (Fla. 1979); see also State v. Pitts, 936 So. 2d 1111,
1133 (Fla. 2d DCA 2006) (noting that appellate courts should
affirm when there is a basis to do so “even if the specific basis for
affirmance has not been articulated by the appellee”); Powell v.
State, 120 So. 3d 577, 592 (Fla. 1st DCA 2013) (noting that
“[c]ourts issue per curiam affirmances with regularity without
briefing from appellees”).
    4  We have been inconsistent as to dispositions in this
situation, sometimes dismissing for lack of jurisdiction, see, e.g.,
K.N.B. v. State, 982 So. 2d 1277 (Fla. 1st DCA 2008); Thomas v.
State, 948 So. 2d 968, 968 (Fla. 1st DCA 2007), sometimes
exercising jurisdiction and affirming, see, e.g., Terry v. State, 149
So. 3d 113 (Fla. 1st DCA 2014); Williams v. State, 134 So. 3d 975,
976 (Fla. 1st DCA 2012). In Leonard v. State, the Florida Supreme
Court said we should summarily affirm in this circumstance,
rather than dismiss. 760 So. 2d 114, 119 (Fla. 2000); see also Paulk
v. State, 765 So. 2d 147, 148 (Fla. 1st DCA 2000) (applying
                                 5
LEWIS, J., concurs; KELSEY, J., dissents with opinion.

                  _____________________________

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

KELSEY, J., dissenting.

     Hicks lost his self-defense-immunity hearing and entered a
plea in which both he and the State stipulated, and the lower court
ruled, that the denial of immunity was dispositive for purposes of
appeal under Florida Rule of Appellate Procedure 9.140(b)(2)(A)
(allowing defendants to “expressly reserve the right to appeal a
prior dispositive order of the lower tribunal, identifying with
particularity the point of law being reserved”). We and other courts
have exercised jurisdiction in this procedural posture and granted
new immunity hearings to litigants in Hicks’s position post-plea.
The majority nevertheless denies Hicks this relief by viewing his
appeal narrowly as seeking only our legal ruling on retroactive
application of the 2017 amendments to section 776.032(4), Florida
Statutes¸ and not directly seeking our case-dispositive ruling on
the underlying issue of immunity under the amended statute—
which we cannot do until after the lower tribunal applies the new
statute in the first instance, which creates a closed loop from which
Hicks cannot escape. This overly-narrow view is factually
inaccurate. Furthermore, legally, the majority view improperly
equates a new immunity hearing with prosecution so as to defeat
dispositivity under rule 9.140, or alternatively finds no
dispositivity because of the possibility of trial if Hicks were to lose
an immunity hearing under the new statute—overlooking that the
State cannot prosecute Hicks after agreeing to a plea. The
majority’s reasoning improperly creates new precedent precluding


Leonard). But cf. Churchill, 219 So. 3d at 17 (“[T]he district courts
have jurisdiction to review the merits of a conditional no contest
plea when the State stipulates that an issue reserved for appeal is
dispositive of the case.” (emphasis added)).

                                  6
Hicks and similarly-situated litigants from obtaining a new
immunity hearing under a more favorable burden and quantum of
proof, to which they are entitled under our precedent. Moreover,
the majority adopts this rationale sua sponte, without giving the
parties the chance to be heard on it. Accordingly, respectfully, I
dissent from the majority opinion as to both procedure and merits.

    I. Procedure.

     As to procedure, I dissent from the majority’s disposition of
this appeal on grounds not preserved or ruled upon below, not
raised in briefing, not discussed at oral argument, and adopted
without the benefit of supplemental briefing. The majority’s
overly-narrow view of Hicks’s argument has the effect of holding
that orders denying self-defense immunity cannot be appealed as
part of a plea in which such orders are stipulated to be dispositive
under rule 9.140(b)(2)(A). In contrast to this new rule of law, the
sole issue in briefing and oral argument was whether the 2017
statutory amendment shifting the burden of proof to the State in
stand-your-ground hearings should apply retroactively to this
case, and Hicks made it clear that he was arguing the procedural
issue to protect his substantive right to immunity. We have
already resolved that issue in favor of retroactivity. Commander v.
State, 246 So. 3d 1303, 1303-04 (Fla. 1st DCA 2018) (holding
legislative change to burden of proof in stand-your-ground
hearings applies retroactively). Our position conflicts with that of
other district courts, and the conflict is pending before the Florida
Supreme Court. Love v. State, 247 So. 3d 609 (Fla. 3d DCA)
(finding amendment not retroactive), review granted, No. SC18-
747, 2018 WL 3147946 (Fla. June 26, 2018). That is the sole issue
preserved, briefed, and argued; and therefore we should rule in
accordance with Commander, reversing and remanding for a new
immunity hearing under the 2017 law, and certifying conflict with
Love.

     The majority nevertheless sua sponte raises new issues and
resolves the appeal on both legal and factual grounds the parties
have had no opportunity to address (i.e., dispositivity in this
context, and the scope of Hicks’s arguments on appeal).
Furthermore, the majority disposes of the appeal on grounds
directly contrary to an express stipulation of dispositivity and

                                 7
appealability by both parties below, which the trial judge expressly
and repeatedly approved. This is not fair to the parties, and the
better practice would be to allow supplemental briefing prior to
decision.

     Whether appellate courts have the authority to rule on
grounds not preserved below and not argued on appeal is one issue,
and whether and through what procedure they should exercise any
such authority sua sponte is another. See, e.g., Robert Martineau,
Considering New Issues on Appeal: The General Rule and the
Gorilla Rule, 40 Vand. L. Rev. 1023, 1023 n.a, 1053-56 (1987)
(noting that, like the proverbial 800-pound gorilla that can sleep
“anywhere it wants,” an appellate court can, under certain
circumstances, resolve issues on grounds raised sua sponte);
Ronald Offenkranz & Aaron Lichter, Sua Sponte Actions in the
Appellate Courts: The “Gorilla Rule” Revisited, 17 J. App. Prac. &
Process 113, 116 n.14 (2016) (noting the exercise of sua-sponte
review is frequently criticized as a deprivation of procedural due
process); Allan D. Vestal, Sua Sponte Consideration in Appellate
Review, 27 Fordham L. Rev. 477, 494 (1958) (“When considered sua
sponte . . . [n]either [party] has had any opportunity to consider
the matter, and both are now bound by res judicata grounded on
considerations which represent not well reasoned positions for the
litigants, but rather only the fortuitous decision of a wayward
court.”) (cited with similar authorities in Miami Dade College v.
Allen, No. 3D18-2218, 2019 WL 1781366 at *4 (Fla. 3d DCA Apr.
24, 2019) (Miller, J., specially concurring)); E. King Poor & James
Goldschmidt, But No One Argued That: Sua Sponte Decisions on
Appeal, DRI For the Defense, Oct. 2015, at 62 (57 No. 10)
(collecting authorities and advocating for very limited exercise of
sua-sponte appellate decision-making); see also Bainter v. League
of Women Voters of Fla., 150 So. 3d 1115, 1126 (Fla. 2014) (“‘Basic
principles of due process’—to say nothing of professionalism and a
long appellate tradition—‘suggest that courts should not consider
issues raised for the first time at oral argument’ and ‘ought not
consider arguments outside the scope of the briefing process.’”)
(quoting Powell v. State, 120 So. 3d 577, 591 (Fla. 1st DCA 2013)).

     In fairness, we should have allowed supplemental briefing on
this issue. See, e.g., Thorlton v. Nationstar Mortg., LLC, 257 So. 3d
596, 601 (Fla. 2d DCA 2018) (noting that “no due process violation

                                 8
has occurred” through the court’s reliance on a new decision
released after conclusion of briefing, because the court allowed
supplemental briefing on the effect of the case). Supplemental
briefing seems especially advisable here in light of the majority’s
creation of new precedent that places a new obstacle in the way of
litigants seeking immunity. The underlying issue of retroactivity
is before the Florida Supreme Court, and could become moot if the
court decides that the 2017 amendment is prospective only; we
have time. As the appeal now stands, Hicks is left to seek
rehearing and rehearing en banc to overturn a decision already
made without benefit of prior adversarial testing, to which the
Court should be more amenable in this posture.

    II. Merits.

    A. Review of Orders Denying Self-Defense Immunity.

     (1) Prohibition. The typical method of obtaining review of
orders denying self-defense immunity is a petition for a writ of
prohibition, on the premise that the trial court lacks authority to
proceed with trial. See Tynes v. State, 262 So. 3d 851, 852 (Fla. 1st
DCA 2018) (granting petition for prohibition where trial court
failed to give retroactive effect to 2017 SYG amendment); Rosario
v. State, 165 So. 3d 852, 854-55 (Fla. 1st DCA 2015) (holding that
prohibition lies to challenge denial of self-defense immunity); Little
v. State, 111 So. 3d 214, 216 n.1 (Fla. 2d DCA 2013) (petition for
writ of prohibition is the appropriate mechanism to challenge the
denial of a motion to dismiss based on a self-defense immunity
statute). Because prohibition by its very definition lies only to
prevent the unlawful exercise of a court’s jurisdiction, prohibition
would seem to be unavailable to litigants like Hicks who plead and
reserve a right of immediate appeal, with the State’s agreement
and the trial court’s approval as to dispositivity, since the plea
agreement itself forestalls any further prosecution and trial.
Research has revealed no cases in which prohibition was filed post-
plea.

     (2) Plea with Reserved Appeal on Immunity. In this case,
Hicks lost his self-defense-immunity hearing, then entered a plea
reserving the right to appeal the denial of immunity, which the
parties stipulated and the trial court agreed was dispositive under
rule 9.140(b)(2)(A). We and other courts have allowed appeals post-
                                  9
plea under these circumstances, when the denial of immunity was
identified as dispositive under rule 9.140(b)(2)(A). See, e.g.,
Whitham v. State, 44 Fla. L. Weekly D975, 2019 WL 1646073 (Fla.
2d DCA Apr. 17, 2019); Edwards v. State, 257 So. 3d 586 (Fla. 1st
DCA 2018); Arauz v. State, 171 So. 3d 160, 162 n.3 (Fla. 3d DCA
2015); Miles v. State, 162 So. 3d 169 (Fla. 5th DCA 2015); cf.
Heredia v. State, 43 Fla. L. Weekly D2613, 2018 WL 6186631 at *1
(Fla. 3d DCA Nov. 28, 2018) (affirming pre-trial immunity ruling
where defendant pleaded and appealed, because he did not reserve
right to appeal).

     (3) Immunity Raised in Post-Trial Plenary Appeal. We,
along with the Second and Fifth Districts, have held the 2017
amendment to be retroactive; and have also entertained post-trial
appeals raising the pre-trial denial of immunity, and requesting a
new immunity hearing, which has been granted. Manley v. State,
2019 WL 1925280 (Fla. 2d DCA May 1, 2019); Feaster v. State, 44
Fla. L. Weekly D1103, 2019 WL 1868197 (Fla. 2d DCA Apr. 26,
2019); Horton v. State, 2019 WL 1781062 (Fla. 2d DCA Apr. 24,
2019); Rivera v. State, 44 Fla. L. Weekly D970, 2910 WL 1575868
(Fla. 2d DCA Apr. 12, 2019) (noting that harmless error analysis
is not available to defeat right to new immunity hearing; trial court
must disregard guilty verdict); Aviles-Manfredy v. State, 44 Fla. L.
Weekly D187, 2019 WL 116471 (Fla. 1st DCA Jan. 7, 2019);
Drossos v. State, 43 Fla. L. Weekly D2764, 2018 WL 6579755 (Fla.
2d DCA Dec. 14, 2018); Martin v. State, 43 Fla. L. Weekly D1016,
2018 WL 207471 (Fla. 2d DCA May 4, 2018); Boston v. State, 260
So. 3d 445 (Fla. 1st DCA 2018); Fuller v. State, 257 So. 3d 521, 539
(Fla. 5th DCA 2018) (reversing judgment and sentence for new
immunity hearing applying new burden of proof). In these cases, if
application of the new burden of proof results in a finding of
immunity, the judgments and sentences are vacated.

     (4) Withdrawal of Plea, Followed by Prohibition. This
avenue of review has been suggested as available when the plea
was not knowing and voluntary, and in theory could be a remedy
if an appellate court rejected a post-plea appeal due to a faulty
reservation of right to appeal. See Heredia, 2018 WL 6186631 at
*1 (affirming order denying motion to dismiss under SYG law
because appellant failed to expressly reserve right to appeal, but
noting that he may have a right to file a motion for relief under

                                 10
Fla. R. Crim. P. 3.850); Daniel v. State, 235 So. 3d 1003 (Fla. 2d
DCA 2017) (citing rule 3.850 as a potential remedy where state
did not stipulate to dispositivity and thus appellate court
dismissed appeal); Russ v. State, 230 So. 3d 510 (Fla. 2d DCA 2017)
(rejecting post-plea appeal for failure to have reserved right of
appeal that appellant believed was reserved, but noting the
availability of a motion to withdraw plea and seek relief under rule
3.850); Werner v. State, 828 So. 2d 499 (Fla. 3d DCA 2002)
(dismissing appeal where both parties conceded the issue reserved
was not dispositive, but allowing appellant to seek relief under
rule 3.850); Murphy v. State, 149 So. 3d 1163 (Fla. 1st DCA 2014)
(noting possibility of motion under rule 3.850 after appeal failed
for lack of stipulation of dispositivity); Cf. Lewis v. State, 251 So.
3d 310, 311 (Fla. 2d DCA 2018) (noting the lack of any deadline for
filing either motions to dismiss or prohibition in stand-your-
ground cases, which the court suggested could lead to procedural
abuse if delayed). However, the time limits on post-conviction
relief may present an obstacle. Research has not revealed a self-
defense-immunity case in which the defendant has withdrawn a
plea and filed for prohibition, which an appellate court then
entertained on the merits.

    B. This Case.

     (1) Procedure Below. This case involves category (2) above:
a plea with reservation of right to appeal the denial of stand-your-
ground immunity—which appeal the majority holds is unavailable
to Hicks even though we entertained it without question in
Edwards, 257 So. 3d at 586. The majority’s decision is thus in
conflict with our decision in Edwards; and in express and direct
conflict with the Second District’s decision in Whitham, 2019 WL
1646073.

    At the conclusion of Hicks’s immunity hearing on August 4,
2016, the trial court determined that Hicks had not satisfied his
burden of proof, and the judge stated in open court the factual basis
on which immunity was denied. Distilled to its essence, the trial
judge’s view of the facts was that after the initial altercation
between Hicks and the alleged—and unarmed—aggressor, the
aggressor withdrew, and there was a short period of inactivity,
during which Hicks went back inside his apartment, got a gun,

                                 11
came back out, and then shot the aggressor/now victim, including
two shots in the victim’s back. The trial judge found that under
these facts Hicks was not justified in using lethal force and
therefore was not entitled to immunity. The judge noted that
whereas the defense had the burden of proof at the immunity
hearing, there were issues of fact and credibility yet to be resolved
at trial.

      At his March 21, 2017, plea hearing and as part of the plea
colloquy, Hicks’s counsel stated that Hicks would “reserve his right
to appeal [the lower tribunal’s] ruling on the stand your ground
hearing.” Counsel described this reservation as “jurisdictional in
nature and would be something that an appellate court could
review either way.” The State had no objection: “I have no objection
[to] that, obviously, statutory immunity would be something that
would be dispositive.” See Fla. R. App. P. 9.140(b)(2)(A)
(authorizing appeals of dispositive orders in conjunction with a
plea agreement).

      The State requested, and defense counsel agreed, that if Hicks
were not successful on the appeal, he could not later withdraw his
plea. Counsel discussed with the trial judge the mechanism of
appellate review, with the judge stating that review would be
“appealed from final judgment.” The prosecutor agreed with the
procedure of appealing the stand-your-ground order post-plea, and
the lower tribunal approved that. As part of the plea colloquy, the
trial judge stated that judgment would be entered, “And so you
would then still preserve the right to appeal that immunity
decision I made against you on the stand your ground.” The judge
indicated counsel would be appointed for the appeal, “And then you
will still be able to pursue the appeal on the stand your ground. . . .
[I]f that’s successful, then that would vacate the judgment. If it’s
not successful, then the judgment and the plea agreement will
stand.”

     Concluding the hearing, the judge again advised Hicks that
he could appeal the plea, judgment, and sentence, and that “You
also have preserved the right to appeal the Court’s prior ruling
denying your motion for immunity under the so-called stand your
ground law. . . . So you have 30 days in which to file a written
appeal. . . .” The judge discussed appointing counsel for the appeal.

                                  12
The same day as the plea hearing, the lower court accepted and
signed the written plea of guilty and negotiated sentence, which
specified as among the negotiated terms, “[Defendant] reserves
right to appeal courts [sic] ruling on Stand Your Ground Hearing.”

     Hicks filed a pro-se notice of appeal from jail on April 18, 2017,
stating that he appealed the court’s order rendered March 21, “a
final order of Judgment and Sentence because he [Hicks]
specifically reserved his Right [sic] to appeal the denial of his
motion to dismiss based upon stand your ground immunity.” The
day before Hicks’s pro-se notice of appeal was docketed, trial
counsel filed, and the court clerk docketed, a notice of appeal from
the “Order Denying Defendant’s Motion for Declaration of
Immunity and Dismissal.” Counsel filed a Statement of Judicial
Acts to be Reviewed, identifying “The trial court’s Order, dated
August 4, 2016, in which the trial court denied Defendant’s Motion
for Declaration of Immunity and Dismissal.” That order denied
Hicks’s Motion for Declaration of Immunity and Dismissal, “for the
reasons stated in open court on August 4, 2016.” As noted above,
the reasons the trial court stated for denying the motion to dismiss
included the burden of proof.

     (2) Post-Disposition Developments. The 2017 amendment
shifting the burden of proof to the State in self-defense immunity
hearings took effect June 9, 2017—a year and a half after Hicks
filed his motion seeking immunity, ten months after the trial
court’s ruling denying immunity, three and a half months after the
parties’ stipulated plea, and two and a half months after the notice
of appeal was filed. Hicks argued in his brief that the 2017
amendment was procedural and thus retroactive, which is now
this Court’s position on that issue under Commander and its
progeny. Hicks specifically argued in his initial brief that the new
standard “will significantly impact the results of any hearing held
under the new standard.” He argued that his hearing was not the
kind envisioned under the new statute and the legislative intent
behind it, that the change in the burden of proof could alter the
outcome of the hearing, and that “[i]t cannot be considered certain
or even likely that the state could overcome” the new burden. He
argued in his reply brief that he and others similarly situated have
not received the “‘full and fair hearing’” contemplated by the new


                                  13
law. At oral argument, the court noted that “the substantive right
here is the immunity,” with which Hicks’s counsel agreed.

     The record clearly reflects that Hicks entered his plea in
reliance on the parties’ stipulation and the trial court’s ruling that
the immunity issue was dispositive. Hicks argued on appeal that
the substantive right of immunity was available to him through
the procedural vehicle created by the 2017 amendment.
Nevertheless, the majority applies a narrow view of Hicks’s
argument, as if he had raised only a purely academic issue about
whether the amendment was retroactive or not with no tie to his
own substantive rights. This narrow view is refuted by Hicks’s own
argument and by common sense. The new development in the law
gave Hicks a new procedural argument—entitlement to a new
immunity hearing under a more favorable burden and quantum of
proof—and as a result he has a very real opportunity to secure his
substantive right of immunity. See, e.g., Mayers v. State, 43 Fla. L.
Weekly D2800, 2018 WL 6598716, at *1 (Fla. 1st DCA Dec. 17,
2018 (remanding for discharge where the trial court rejected an
immunity claim under prior statute, but alternatively held 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”).
The majority, however, would block Hicks’s procedural path on the
grounds that even a very real opportunity to secure the
substantive right of immunity is insufficiently definitive to have
been dispositive under rule 9.140(b)(2)(a).

    I believe the majority’s reasoning is contrary to Florida
Supreme Court precedent on dispositivity, as I will explain below.
The majority also suggests (albeit in a footnote) that it would reach
the same result on the particularity requirement of              rule
9.140(b)(2)(a). I therefore address both dispositivity and
particularity, while holding to my position that the majority’s
novel analysis should not have been raised and resolved sua sponte
absent supplemental briefing, at a minimum.

    C. Dispositivity.

     As part of their plea agreement, Hicks and the State
stipulated that the denial of immunity was dispositive for purposes
of appeal, and the trial court expressly agreed. The stipulation
brings this case within the scope of Churchill v. State, 219 So. 3d
                                 14
14 (Fla. 2017). In Churchill, the supreme court held that if the
State stipulates that an issue reserved for appeal is dispositive,
then a reviewing court is bound by the stipulation: “For the reasons
expressed above, we hold that, in appeals from conditional no
contest pleas, stipulations of dispositiveness are binding on the
appellate court.” Id. at 18. In so holding, the supreme court
expressly rejected the district court’s reasoning that dispositivity
was lacking where a scenario existed under which a new trial could
follow on remand. Id. at 15. Churchill, while not involving a SYG
immunity hearing, clearly instructs that the appellate court is not
authorized to go behind a stipulation of dispositivity and speculate
about what might transpire on remand. In other words,
dispositivity is to be determined in accordance with the stipulation
as and when made in the trial-court proceedings, not from the
perspective of the reviewing court and its potential disposition of
the appeal. See also Clayton v. State, 252 So. 3d 827 (Fla. 1st DCA
2017) (entertaining appeal from order denying motion to suppress
where state agreed it was dispositive); England v. State, 46 So. 3d
127, 129 (Fla. 2d DCA 2010) (holding that order denying motion to
suppress “is not dispositive unless the parties so stipulate”)
(quoting Wilson v. State, 885 So. 2d 959, 960 (Fla. 5th DCA 2004));
Jackson v. State, 382 So. 2d 749 (Fla. 1st DCA 1980) (holding
appellate court will treat appeal as involving a dispositive issue if
the State stipulates to it).

     In the SYG context, viewed from the perspective of the
appellate court’s options, several outcomes are theoretically
possible, although not all are likely given the nature of the issues.
The appellate court could find the defendant entitled to immunity
as a matter of law, in which case the process ends. In the typical
prohibition proceeding brought after a SYG ruling and before trial
(not involving a plea), if the reviewing court finds the defendant
not entitled to immunity, a trial may occur on remand (although
as a practical matter it would seem the likelihood of a plea
increases under this scenario).

     The analytical difficulty increases when the appellate issue is
the proper burden of proof. If this issue is raised via prohibition
between immunity hearing and trial, with no plea, and the
appellate court rules that the wrong burden was used below, the
trial court may simply review the evidence already adduced at the

                                 15
earlier SYG hearing, applying the new burden and quantum of
proof. See Tynes, 262 So. 3d at 852 (noting trial court could apply
the new analysis to the evidence already adduced at hearing). In
other instances there can be a new SYG hearing—although again,
the possibility of a plea. If on new review or a new SYG hearing
the defendant prevails, the State can go no further. And, if the
defendant loses in the new hearing, the State can take it to trial
(with a higher likelihood of a plea). But when the issue is raised
immediately post-plea—or even on plenary appeal post-trial, see,
e.g., Boston and Aviles-Manfredy—the defendant is entitled to a
new weighing of evidence or a new SYG hearing under the correct
burden of proof.

      Importantly, that limited pre-trial immunity hearing in and
of itself is not prosecution nor a trial on the merits, and therefore
cannot defeat dispositivity. This demonstrates that the majority
erroneously describes my dissent as presuming the State will
pursue its case—meaning prosecution, trial, judgment, and
sentence. To the contrary, in this context, the correct disposition
would first honor the bilateral, court-approved stipulation of
dispositivity, then remand solely for a new weighing of evidence or
a new immunity hearing applying the new burden of proof. If the
State loses and Hicks secures immunity, the case is over, and that
is dispositivity within Churchill.

     As a practical matter in cases not involving the facts
presented here, the outcome of a new immunity hearing will either
end further prosecution below and thus be actually dispositive, or
allow a trial (or make a plea ever more likely). That academic
possibility of a trial following an order denying immunity after
remand leads the majority to find no dispositivity. Factually, that
reasoning does not apply here, with a plea and a stipulation of
dispositivity. Analytically, that reasoning applies the wrong
perspective—that of the appellate court’s potential remedies on
the immunity question, and resulting sequelae. To the contrary,
Churchill instructs us to test dispositivity from the perspective of
the stipulating parties. What theoretically could happen on
remand in a vacuum is not controlling under Churchill. See also
Foster v. State, 232 So. 3d 512, 514–15 (Fla. 2d DCA 2017) (holding
an issue is dispositive if the State cannot go to trial after losing the


                                  16
motion). If the parties agreed it is dispositive, it is, for purposes of
invoking our review. Here, they did, and it is.

     In addition, Churchill indicates that the State is bound by its
stipulation of dispositivity, and is thus precluded from continuing
to prosecute on remand: “When the State enters into a plea
agreement on the condition that the defendant will not face further
prosecution if he or she prevails on appeal, that agreement is
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. The trial court here advised
Hicks that he could not withdraw his plea if he did not win this
appeal, and that the judgment would be vacated if he did win this
appeal. The discussion did not extend to whether the State’s
stipulation, sufficient to confer jurisdiction under rule
9.140(b)(2)(A), would become an actual bar to further prosecution
if Hicks lost a new SYG hearing on remand. It appears it would be;
that is, that the best-case scenario for Hicks is exoneration and his
worst-case scenario is his plea. There is no indication the State
would proceed to trial, and to the contrary, the State reminded
Hicks that he could not withdraw his plea if he loses this appeal,
and then the State stipulated to dispositivity of the immunity
issue—all indicating no ability or intention of proceeding to trial.
Nor is there any indication that Hicks would have entered the plea
and stipulation if he had thought he could be subjected to a full
trial. He will hold the State to its stipulation. In the event of a
dispute, it would be for the lower tribunal in the first instance to
resolve issues about whether the stipulation actually foreclosed
further prosecution and whether Hicks’s plea was fully-informed
and voluntary in this and other respects. For present purposes,
Churchill and its progeny direct that we accept the parties’
stipulation as to dispositivity; the record strongly indicates that
both parties believe there will be no trial regardless; and what
could theoretically happen on remand is not controlling.

     The majority cites two cases limiting dispositivity to
situations where there could not be a trial on remand: Williams v.
State, 134 So. 3d 975, 976 (Fla. 1st DCA 2012), and Morgan v.
State, 486 So. 2d 1356, 1357 (Fla. 1st DCA 1986). Williams
involved a competency determination, which the State did not
stipulate was dispositive and the trial court did not find was

                                  17
dispositive. Morgan involved the exclusion of evidence in a driving-
while-intoxicated case, and the parties agreed that the State could
proceed to trial if the appellate court reversed the exclusion. Both
cases pre-date Churchill. Neither case involved self-defense
immunity; neither involved a bilateral, court-approved stipulation
of dispositivity like we have here; and both would appear to conflict
with Foster, 232 So. 3d at 514–15. Because of the unique nature of
immunity itself as only a potential bar to prosecution and trial, it
will always be necessary to hold some sort of proceeding to
determine whether immunity applies, and thus the majority’s
analysis would always make it impossible for litigants to establish
actual dispositivity in the literal and immediate sense. The
majority’s analysis is thus an unwarranted procedural restriction
of the substantive right of immunity.

     In adopting this new precedent that has the legal effect of
precluding appeals following pleas in SYG cases, the majority
misplaces its reliance on the broad jurisprudential goal of avoiding
piecemeal appeals. As discussed above, Churchill itself, which the
majority cites for this proposition, would allow immediate review
following a plea that expressly states the issue is dispositive. By
refusing to follow Churchill and accept a court-approved
stipulation of dispositivity, the majority would actually generate
more piecemeal proceedings by forcing litigants to move to
withdraw their pleas and proceed with ineffective assistance of
counsel claims, which then generate even more appeals.

     Further, immunity from suit is an appropriate subject for
interlocutory appeals, as evidenced by the existing appellate rule
allowing such appeals. Fla. R. App. P. 9.130(a)(3)(C)(v), (vii), (x),
(xi) (workers compensation immunity, immunity in civil rights
actions under federal law, immunity from being named as a
defendant in a suit pursuant to section 768.28(9), Florida Statutes,
and sovereign immunity). The absence of a specific rule allowing
appeals from orders denying SYG immunity—which is an
immunity from prosecution and trial, and not merely immunity
from punishment or damages—most likely reflects only the
recency of evolutions in SYG law. The Appellate Rules Committee
should address this gap. See generally Florida Highway Patrol v.
Jackson, 238 So. 3d 430, 431-33 (Fla. 1st DCA 2018) (reviewing
evolution of rules allowing interlocutory appeal of non-final orders

                                 18
denying immunity). Immediate review in a case involving
immunity from prosecution is within the same analytical grouping
as those immunities for which immediate appeal is already
authorized, and we in addition to other courts have accepted such
appeals in multiple cases already. We should do the same here.

    D. Particularity.

     Although not expressly basing its disposition on the
particularity issue, the majority heavily discusses the issue in a
footnote. Their point is that because Hicks did not object to bearing
the burden of proof at his SYG hearing, and did not specify in his
plea agreement that he intended to appeal the burden of proof, he
cannot satisfy the particularity requirement of rule 9.140(b)(2)(A)
(allowing defendant to “expressly reserve the right to appeal a
prior dispositive order of the lower tribunal, identifying with
particularity the point of law being reserved”). I believe the
majority would be mistaken in that reasoning in two respects: first,
by requiring litigants to “reserve” a narrow point of law that does
not exist at the time; and second, by interpreting the rule too
narrowly to the prejudice of a litigant who did all that the law
required of him.

     (1) A Precognition Requirement? The timeline shows
clearly that the legislative change in the SYG burden of proof
occurred months after Hicks and the State stipulated that he could
appeal the trial court’s denial of immunity, as well as months after
the notice of appeal was filed. It was completely impossible for
Hicks to know at the immunity hearing or plea stage that the
Legislature would make the change that it later made. It was
completely impossible for him to meet the burden the majority
would now place on him. This theory cannot validly be asserted as
a basis to rule against Hicks on appeal. Cf. Brooks v. State, 175 So.
3d 204, 235 n.9 (Fla. 2015) (rejecting argument that counsel was
ineffective for failing to raise a due-process defense based on a case
not issued until two years after trial, and noting that “This Court
has made clear that counsel cannot be held ineffective for failing
to anticipate changes in the law”) (citing Taylor v. State, 62 So. 3d
1101, 1111 (Fla. 2011)); Nelms v. State, 596 So. 2d 441, 442 (Fla.
1992) (holding failure to raise change of law occurring more than
three years after defendant’s sentence was affirmed could not

                                 19
constitute ineffective assistance of counsel: “Defense counsel
cannot be held ineffective for failing to anticipate the change in the
law.”).

     Although research has not revealed a Florida case precisely
on point, other jurisdictions have recognized the impossible
position it would create to require litigants to foresee the future
enactment of a retroactive statute. Thompson v. State, 985 A.2d
32, 42 (Md. 2009) (“[T]o say that Thompson cannot receive the
benefit of the remedial provisions of CP Section 8–201 simply
because he failed to foresee the enactment of this legislation in
characterizing his motion, would be contrary to the retroactivity
analysis we just made.”); Beatty v. State, 627 So. 2d 355, 358 (Miss.
1993) (“The application of Section 27–27–12 and the resultant
amendment to Section 97–33–7 is not a charitable raising of an
issue not raised but is a necessary application of existing law to
which the appellant is entitled. We simply cannot apply the law as
it was and is not anymore.”); cf. Pace v. Jordan, 999 S.W.2d 615,
620 (Tex. Ct. App. 1999) (refusing to apply a statutory amendment
because the amendment occurred while the case was pending in
the trial court and no argument regarding the amendment was
preserved). As a matter of practicality and fairness—due process—
Hicks cannot be refused relief because he could not foresee the
future legislative change and state in his plea that he would raise
that, specifically, on appeal.

     (2) The Benefit of any Doubt. The practical impossibility of
foreseeing the 2017 legislative change and specifying it as a basis
of appeal after plea would defeat any attempt to rule that Hicks
failed to satisfy the particularity requirement of rule
9.140(b)(2)(A). Case law interprets the particularity requirement
more broadly and more favorably to litigants. In England, the
defendant filed a motion to suppress physical evidence, and also
moved to suppress his confession. He entered a plea, reserving the
right to appeal at least one motion to suppress, but it was not clear
which one. The parties appeared to agree that at least one motion
was dispositive, and the court appeared to agree, but again, it was
not clear which one. 46 So. 3d at 129.

    On appeal, the Second District rejected on the merits the
appellant’s arguments directed to suppression of the physical

                                 20
evidence. With respect to the motion to suppress the confession,
the appellate court described the circumstances as “murky,” and
noted that the case exemplified the need for clarity and specificity.
Id. at 129 & n.2. Nevertheless, the court followed its own precedent
of giving the appellant the benefit of any doubt: “In these types of
cases, we have given appellants the benefit of any uncertainty as
to the appealability of orders denying motions to suppress and we
have proceeded to discuss the merits of these cases.” Id. at 129
(citing additional cases); see also Edwards, 257 So. 3d at 587
(reaching SYG merits issues under broadly-worded reservation of
right to appeal the stand your ground ruling). The language used
in Hicks’s reservation of rights and stipulation as to dispositivity
was typical of that used in other cases, and better than some. It
was sufficient.

    III. Conclusion.

      The facts presented make an exceptionally strong case for
dispositivity due to the plea and its incorporated bilateral, court-
approved stipulation of dispositivity. The immunity question
uniquely requires a non-prosecutorial evidentiary analysis to give
life to the substantive right of immunity at stake. As a matter of
law, an immunity hearing is not itself a trial or prosecution. This
evidentiary proceeding does not in and of itself defeat dispositivity,
even if such analysis were permissible on the facts of this case,
where the parties contemplated an end to prosecution regardless
of the outcome of this appeal.

     Consistent with Commander, we should reverse Appellant’s
judgment and sentence, and remand for a new stand-your-ground
immunity hearing at which the State has the burden of proof under
section 776.032(4). See Commander, 246 So. 3d at 1303-04. We
should certify conflict with the decisions of other courts finding the
2017 statutory change prospective. See Love, 247 So. 3d at 609;
Hight v. State, 253 So. 3d 1137 (Fla. 4th DCA 2018). We should not
override a stipulated, judge-approved reservation of right to
appeal an issue designated as dispositive, and then change
existing SYG law--especially not without first affording the parties
the courtesy of being heard in supplemental briefing. Therefore, I
respectfully dissent.


                                 21
                _____________________________


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

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




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