       Third District Court of Appeal
                               State of Florida

                            Opinion filed July 22, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D13-1892
                         Lower Tribunal No. 09-34621
                             ________________


                                James Arauz,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



     An Appeal from the Circuit Court for Miami-Dade County, Yvonne
Colodny, Judge.

     Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public
Defender, for petitioner.

      Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant
Attorney General, for respondent.


Before SUAREZ C.J., and EMAS and FERNANDEZ, JJ.

     SUAREZ, C.J.

           ON MOTION FOR CLARIFICATION/REHEARING

     The State of Florida moves for clarification or rehearing of our May 20,

2015 opinion.    We grant the State’s Motion for Clarification/Rehearing,
withdraw the prior opinion and substitute the following in its place:

      Defendant James Arauz appeals the denial of his motion to dismiss the

criminal charges against him based on sections 776.032 and 776.12, Florida

Statutes (2009), commonly called the “Stand Your Ground” law. We find that the

trial court’s findings of fact are supported by competent substantial evidence and

that the trial court correctly applied the law. Therefore, we affirm the denial of

Arauz’s motion to dismiss.

      Arauz was charged with second degree murder for stabbing the victim

several times.1 Arauz does not deny that he stabbed the victim. Rather, he claims

that he is immune from criminal prosecution pursuant to Section 776.032 because

he believed the force he used was necessary to prevent the imminent commission

of a forcible felony, specifically a sexual battery,2 by the victim.

      When a defendant files a motion to dismiss based upon the Stand Your

Ground law, the trial court must conduct an evidentiary hearing and weigh all the

factual evidence presented. Dennis v. State, 51 So. 3d 456, 458 (Fla. 2010) (“We

conclude that where a criminal defendant files a motion to dismiss on the basis of

section 776.032, the trial court should decide the factual question of the


1 Arauz was also charged with credit card theft and fraudulent use of the victim’s
credit card.
2See Sections 776.012 and 776.08, Florida Statutes (2013) defining sexual battery
as a “forcible felony” for purposes of the Stand Your Ground law.
applicability of the statutory immunity.”). After the evidentiary hearing, the trial

court must determine whether a preponderance of the evidence shows the

defendant to be immune from prosecution under section 776.12(2). Id. at 460. See

also State v. Yaqui, 51 So. 3d 474, 475-76 (Fla. 3d DCA 2010). Under the

appellate court’s standard of review in a Stand Your Ground case, the trial court’s

findings of fact are “presumed correct and can be reversed only if they are not

supported by competent substantial evidence, while the trial court’s legal

conclusions are reviewed de novo.” Mobley v. State, 132 So. 3d 1160, 1162 (Fla.

3d DCA 2014) (citing State v. Vino, 100 So. 3d 716 (Fla. 3d DCA 2012)). See

also Joseph v. State, 103 So. 3d 227, 229-30 (Fla. 4th DCA 2012).

      In this case, Arauz claimed immunity based on an alleged threat of the

imminent commission of a sexual battery. At the evidentiary hearing it was shown

that Arauz was a student at Florida International University and had known the

victim for several years prior to the incident. Arauz sometimes performed odd jobs

for the victim. The victim occasionally flirted with Arauz and asked him about his

sexual preferences. On October 15, 2009, prior to going to the victim’s house,

Arauz told his girlfriend he was going to obtain some money. He then went to the

victim’s house to obtain a letter of reference, which the victim had promised to

provide for an internship application by Arauz. Arauz testified that when he got to

the victim’s home, the victim demanded sexual favors in exchange for the letter of


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recommendation. Arauz testified that he rejected the demand and attempted to

leave the victim’s home, but he was blocked. According to Arauz, during the

ensuing altercation the victim grabbed Arauz’s wrist and shoulder, forcing him

against a wall. Arauz then ran out of the back of the house, but the victim followed

him and chased him back into the house. Arauz then grabbed a knife and told the

victim he would stab him. Additional fighting ensued when Arauz attempted to

unlock the front door or gate during which time the victim cut his hand on the

knife and Arauz stabbed the victim at least once. Arauz and the victim continued

to fight, losing the knife and trying to relocate it, with Arauz eventually stabbing

the victim several times. Arauz testified that after the stabbing he “tapped” the

body, but did not call for any help. He went into the kitchen, cleaned his wounds

and had a glass of water. Arauz then dragged the body into the house from the

courtyard and hosed down the courtyard and walls of blood and wiped the blood

off of the knife. Arauz took clothing from the victim as well as money and credit

cards and, over the next four days, used the victim’s credit card and told several

people different stories regarding his use of the credit card and the source of his

wounds.

      Following the evidentiary hearing, based on the totality of the evidence

presented, the trial court concluded that Arauz had not satisfied the necessary

burden of proof to be immune from criminal prosecution pursuant to the Stand


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Your Ground law. The trial court specifically found that “[t]aken in their totality,

these actions [of the defendant] do not reflect someone who had simply been trying

to protect himself from death or serious bodily injury.”3

      We find there is competent substantial evidence to support the trial court’s

factual findings and that the trial court properly analyzed the legal issues. We

conclude the trial court did not err in denying Arauz’s motion to dismiss, and

therefore affirm the conviction and sentence.

      Affirmed.




3 Following the trial court’s denial of the motion to dismiss, Arauz entered a
negotiated plea, reserving the right to appeal the denial of this dispositive motion.

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