       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           JEROME SPARKS,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D18-307

                              [April 1, 2020]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Cheryl A. Caracuzzo, Judge; L.T. Case No.
502016CF006300AXXXMB.

  Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Allan R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.

        ON REMAND FROM THE FLORIDA SUPREME COURT

KUNTZ, J.

   This case is on remand from the Florida Supreme Court for
reconsideration based on the court’s decision in Love v. State, 286 So. 3d
177 (Fla. 2019). Previously, a panel of this Court per curiam affirmed the
circuit court’s judgment with a citation to this Court’s earlier decision in
Hight v. State, 253 So. 3d 1137 (Fla. 4th DCA 2018). Sparks v. State
(Sparks I), 266 So. 3d 1187, 1187 (Fla. 4th DCA 2019), quashed by Sparks
v. State (Sparks II), No. SC19-524, 2020 WL 972589, at *1 (Fla. Feb. 28,
2020). On remand, we again affirm without comment the circuit court’s
judgment in all respects and write only to explain our affirmance on
Sparks’s Stand Your Ground challenge.

  In January 2017, the circuit court denied Sparks’s Stand Your Ground
motion to dismiss two counts of the information charging him with
attempted first-degree murder. 1 The court found that, under Bretherick
v. State, 170 So. 3d 766 (Fla. 2015), Sparks did not carry his burden of
proof to establish immunity by a preponderance of the evidence. See
Bretherick, 170 So. 3d at 779 (“We conclude that placing the burden of
proof on the defendant to establish entitlement to Stand Your Ground
immunity by a preponderance of the evidence at the pretrial evidentiary
hearing, rather than on the State to prove beyond a reasonable doubt that
the defendant’s use of force was not justified, is consistent with this
Court’s precedent and gives effect to the legislative intent.”).

    Months later, the legislature amended the burden of proof in a Stand
Your Ground hearing. See § 776.032(4), Fla. Stat. (2017) (“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
provided in subsection (1).”); ch. 2017-72, § 2, Laws of Fla. (providing an
effective date of June 9, 2017, for subsection (4)).

   Our prior panel affirmance of Sparks’s conviction was based on Hight,
which concluded that the amendment adding subsection (4) was a
substantive change in the law that did not apply retroactively. Sparks I,
266 So. 3d at 1187; Hight, 253 So. 3d at 1143. We now conclude that, at
least in part, Hight can no longer be applied based on the Florida Supreme
Court’s holding in Love, 286 So. 3d at 190. See also Rivera v. State, No.
4D16-4328, 2020 WL 1162686, at *2 (Fla. 4th DCA Mar. 11, 2020) (same).
In Love, the court held that section 776.032(4), Florida Statutes (2017), “is
a procedural change in the law and applies to all Stand Your Ground
immunity hearings conducted on or after the statute’s effective date.” 286
So. 3d at 190; see also ch. 2017-72, § 2, Laws of Fla.

   But the court’s holding in Love does not change the result in this case.
In Love, the supreme court also held that the statutory amendment did
not apply to any hearing completed before the effective date of the statutory
amendment. See 286 So. 3d at 190 (stating that the Stand Your Ground
hearing in the certified conflict case of Martin v. State, No. 2D16-4468,
2018 WL 2074171 (Fla. 2d DCA May 4, 2018), “was properly conducted
under Bretherick”); id. at 180 (“[W]e disagree with Martin’s all-or-none
conclusion that the new procedures apply in all pending cases, even where
the immunity hearing was held prior to the statute’s effective date.”).


1He was also charged with two counts of aggravated assault with a deadly
weapon, but those counts were nolle prossed.

                                     2
   Here, because Sparks’s Stand Your Ground hearing occurred months
before the effective date of the statutory amendment, the burden in
Bretherick applied. See Love, 286 So. 3d at 180, 190; Bretherick, 170 So.
3d at 768.

   The circuit court’s judgment is affirmed.

   Affirmed.

GERBER and KLINGENSMITH, JJ., concur.

                           *        *          *

   Not final until disposition of timely filed motion for rehearing.




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