       Third District Court of Appeal
                               State of Florida

                           Opinion filed May 11, 2018.
         Not final until disposition of timely filed motion for rehearing.
                               ________________

                               No. 3D17-2112
                         Lower Tribunal No. 15-24308
                             ________________

                                Tashara Love,
                                    Petitioner,

                                        vs.

                            The State of Florida,
                                   Respondent.

     A Case of Original Jurisdiction – Prohibition.

     Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa and John
Eddy Morrison, Assistant Public Defenders, for petitioner.

      Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant
Attorney General, and Amit Agarwal, Solicitor General (Tallahassee), for
respondent.

     Cooper & Kirk, PLLC, Davis Cooper and David H. Thompson
(Washington, D.C.), for the NRA Freedom Action Foundation, as amicus curiae.

Before FERNANDEZ, LOGUE and SCALES, JJ.

     FERNANDEZ, J.
      Petitioner Tashara Love seeks a writ of prohibition directing the trial court to

discharge her from prosecution on the ground of statutory immunity pursuant to

Florida’s Stand Your Ground Law, section 776.032, Florida Statutes (2017). For

the reasons set forth below, we deny the petition.

      On November 26, 2015, Love and a group of women were involved in an

altercation, which lasted approximately three minutes, outside a Miami-Dade

County nightclub. At the end of the altercation, Love shot the victim, Thomas

Lane, as he was about to hit her daughter. Love does not dispute these facts.

      Thereafter, the State charged Love with one count of attempted second

degree murder with a firearm. Love invoked Florida’s Stand Your Ground law,

section 776.032, Florida Statute (2017), asserting she was immune from

prosecution because she committed the crime while defending her daughter.

      Before the date on which Love’s immunity hearing was held, the Florida

Legislature amended section 776.032. However, before that amendment, the

Florida Supreme Court had held in Bretherick v. State, 170 So. 3d 766 (Fla. 2015),

that section 776.032(1) granted a person immunity from prosecution if the person

was able to prove at a pretrial hearing, by a preponderance of the evidence, that the

use of force was justified as outlined in the statute. Because no procedure or

mechanism had been promulgated yet by Florida’s Legislature regarding how to

assess a defendant’s immunity claim, the Florida Supreme Court, through statutory



                                          2
interpretation, determined that defendants had the burden of proof in pretrial

immunity hearings and that they had to prove by a preponderance of the evidence

that their “use of force was justified, as specified by statute.” Id. at 775. Thereafter,

in June 2017, the Legislature passed Ch. 2017-72, Laws of Florida, to amend the

Stand Your Ground statute. The Legislature added subsection (4), which states:

      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).

It became effective on June 9, 2017.

      At Love’s immunity hearing, the State’s position was that section

776.032(4) did not apply retroactively. In the alternative, the State further argued

that section 776.032(4) was unconstitutional. In its written order, the trial court

rejected the State’s retroactivity argument but agreed with the State that section

776.032(4) was unconstitutional because it violated the separation of powers. The

trial court added that only the Florida Supreme Court had the authority to amend

the burden of proof. The trial court thus applied the burden of proof applicable

before the 2017 amendment and found that Love did not prove by a preponderance

of the evidence that she was entitled to Stand Your Ground immunity. Love now

petitions this Court.1

1A petition for writ of prohibition is the proper method to review a trial court’s
denial of Stand Your Ground immunity. Mobley v. State, 132 So. 3d 1160, 1161

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      First, we hold that the amendment to section 776.032 was constitutional.

Article V, section 2(a) of the Florida Constitution states:

      The supreme court shall adopt rules for the practice and procedure in
      all courts including the time for seeking appellate review, the
      administrative supervision of all courts, the transfer to the court
      having jurisdiction of any proceeding when the jurisdiction of another
      court has been improvidently invoked, and a requirement that no
      cause shall be dismissed because an improper remedy has been
      sought. The supreme court shall adopt rules to allow the court and the
      district courts of appeal to submit questions relating to military law to
      the federal Court of Appeals for the Armed Forces for an advisory
      opinion. Rules of court may be repealed by general law enacted by
      two-thirds vote of the membership of each house of the legislature.

Article V, section 2(a) gives the Florida Supreme Court the authority to adopt rules

of practice and procedure. However, the Legislature has the constitutional

authority to enact procedural provisions in statutes that are intertwined with

substantive rights. Caple v. Tuttle Design-Build, Inc., 753 So. 2d 49, 54 (Fla. 2000)

(the Florida Supreme Court has “consistently rejected constitutional challenges

where the procedural provisions were intertwined with substantive           rights.”).

Subsection (1) of 776.032 gives “defendants a substantive right to assert immunity

from prosecution and to avoid being subjected to trial.” See Bretherick, 170 So. 3d

at 772 (Fla. 2015) (quoting Dennis v. State, 51 So. 3d 456, 462 (Fla. 2010)).

Subsection (4) of 776.032 then establishes the burden of proof to be applied at the

pretrial immunity hearing where the person’s substantive right to Stand Your

(Fla. 3d DCA 2014).


                                           4
Ground immunity is being determined by the trial court. The amendment shifts the

burden of proof to the prosecution after the defendant has made a prima facie claim

of justified use of force, and it requires that the State meet this burden of proof

with clear and convincing evidence. § 776.032(4), Fla. Stat. (2017). This is

consistent with the well-established legislative practice of passing statutes

allocating the burden of proof in judicial proceedings. In addition, section

776.032(4) does not conflict with any rule of procedure promulgated by the Florida

Supreme Court because no such rule was added to the Florida Rules of Criminal

procedure regarding section 776.032 before subsection (4), nor was there a rule of

procedure set forth by the Legislature before January 2017.2 The Legislature, thus,

had the constitutional authority to enact the burden of proof provision of section

776.032(4) in order to give effect to the substantive right to immunity in the Stand

Your Ground statute.3

2With respect to the burden of proof in pretrial Stand Your Ground hearings, the
Florida Supreme Court held in Bretherick, supra, that the burden of proof in
pretrial immunity hearings was on the defendant, who was required to prove by a
preponderance of the evidence that he was entitled to the statutory immunity.
Bretherick was decisional law that established the procedures to use in pretrial
immunity hearings in Stand Your Ground cases before June 9, 2017, because the
Legislature had left this procedural gap.
3 We are cognizant of the recent opinion out of the Second District Court of
Appeal, Tymothy Ray Martin v. State, No. 2D16-4468, 43 Fla. L. Weekly D1016c
(Fla. 2d DCA May 4, 2018), where the Second District decided that section
776.032(4) is a procedural amendment that should be applied retroactively to all
pending cases. We disagree with the Second District Court of Appeal’s holding
because we believe Smiley v. State, 966 So. 2d 330 (Fla. 2007), mandates a finding

                                         5
      Second, we hold that the statute did not apply to Love’s case because the

crime she committed occurred before the amendment’s effective date, and the

statute has no retroactive application. Section 776.032(4) was effective June 9,

2017, and Love shot Thomas on November 26, 2015. With regard to the issue of

the statute’s retroactivity, we find Smiley v. State, 966 So. 2d 330 (Fla. 2007) to be

particularly instructive, as well as controlling.

      In Smiley, the defendant was charged with first degree premeditated murder

occurring on November 6, 2004. Id. at 332. The defendant shot the victim who was

an occupant of the defendant’s cab. Id. Before trial, the defendant filed a motion to

permit the use of two special jury instructions based upon the newly enacted

statute, at the time section 776.013, Florida Statutes (2005). Those proposed

instructions were:

      A person who is not engaged in an unlawful activity and who is
      attacked in any other place where he or she has a right to be has no
      duty to retreat and has the right to stand his or her ground and meet
      force with force, including deadly force if he reasonable [sic] believes
      it is necessary to do so to prevent death or great bodily harm to
      himself or to prevent the commission of a forcible felony.




that the subsection (4) amendment to section 776.032 is a substantive change in the
law. We further disagree with the Second District Court of Appeal in Martin
because we believe that Smiley’s holding that Article X, section 9 of the Florida
Constitution prohibits retroactive application of criminal legislation is applicable to
section 776.032(4). Thus, we certify conflict with the Second District Court of
Appeal’s decision in Martin.

                                           6
      A person who unlawfully and by force enters or attempts to enter a
      person's occupied vehicle is presumed to be doing so with the intent to
      commit an unlawful act involving force or violence.

Id. The trial court granted the defendant’s request to use these jury instructions

after finding that “the statute was remedial and should have retroactive

application.” Id.

      The State appealed to the Fourth District Court of Appeal via an emergency

petition for writ of certiorari. The Fourth District granted the State's petition,

holding that section 776.013, Florida Statutes (2005), does not apply to conduct

committed prior to its effective date of October 1, 2005; therefore, the defendant

was not entitled to the requested jury instructions. Id. at 332-333.

      The defendant then filed a motion for rehearing or certification of this issue

as a question of great public importance—the Fourth District denied rehearing.

However, the Fourth District certified the following question to be of great public

importance: “DOES SECTION 776.013, FLORIDA STATUTES (2005), APPLY

TO    CASES         PENDING    AT    THE       TIME   THE     STATUTE    BECAME

EFFECTIVE?” State v. Smiley, 944 So. 2d 1027, 1028 (Fla. 4th DCA 2006). The

defendant in Smiley filed a notice to invoke discretionary jurisdiction with the

Florida Supreme Court, and it granted review.

      The Florida Supreme Court answered the question in the negative. Smiley,

966 So. 2d at 332. According to Smiley, “a statute that achieves a ‘remedial



                                           7
purpose by creating substantive new rights or imposing new legal burdens’ is

treated as a substantive change in the law.” Smiley at 334 (citing to Arrow Air,

Inc., 645 So. 2d 422, 424 (Fla. 1994)) (emphasis added). Here, the subsection (4)

amendment to section 776.032 imposed a new legal burden on the State, requiring

the State to prove by clear and convincing evidence that the defendant was not

justified in using or threatening to use force as permitted in sections 776.012,

776.013, or 776.031, Florida Statutes. The amendment is thus treated as a

substantive change in the law, and therefore does not apply retroactively.

      Furthermore, Article X, section 9 of the Florida Constitution provides that

“[r]epeal or amendment of a criminal statute shall not affect prosecution or

punishment for any crime previously committed.” The Florida Constitution

imposes a restriction on retroactive application of criminal legislation. The Florida

Supreme Court in Smiley went on to state:

      As the State correctly argues, this constitutional provision precludes
      section 776.013 from applying retroactively to pending cases. The key
      determination is that section 776.013 qualifies as a “criminal statute.”
      With regard to article X, section 9, the term “criminal statute” is
      defined in a broad context. In Washington v. Dowling, 92 Fla. 601,
      109 So. 588 (1926), this Court provided the following definition for
      the words “criminal statute”: “[A]n act of the Legislature as an
      organized body relating to crime or its punishment ... defining crime,
      treating of its nature, or providing for its punishment ... [or] deal[ing]
      in any way with crime or its punishment.” Id., 109 So. at 591.

Smiley, 966 So. 2d at 337.




                                          8
      In the case before us, section 776.032(4) qualifies as a criminal statute

because it affects whether the State can prosecute a defendant in the same manner

as before subsection (4) was added. If the amended statute were to apply to Love,

she could not be prosecuted in the same manner as before because the burden of

proof at the immunity hearing would now shift to the State and the burden would

rise to clear and convincing evidence. Thus, article X, section 9 of the Florida

Constitution does not allow section 776.032 to be applied retroactively. Smiley,

966 So. 2d at 337 (“[The defense] has a direct impact on the prosecution of the

offense…”).

      In sum, although section 776.032(4), Florida Statutes (2017), is

constitutional, under the authority of Smiley, Love is not entitled to the benefit of

the shift in the burden of proof because the amendment to the statute by the

Legislature in June 2017 operated prospectively and, thus, is inapplicable to Love’s

case. Accordingly, we deny Love’s petition for writ of prohibition.

      Petition denied. Conflict certified.




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