          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                         No. 1D17-3005
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LUIS AVILES-MANFREDY,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Clay County.
John H. Skinner, Judge.

                         January 7, 2019


PER CURIAM.

     In accordance with the jury’s verdict, Appellant was convicted
of, and sentenced on, one count of shooting or throwing deadly
missiles (a second-degree felony) and one count of discharging a
firearm from a vehicle, both counts arising from an instance of
“road rage” that occurred on May 6, 2016. His motion to dismiss
based on the “Stand Your Ground” immunity found in section
776.032, Florida Statutes (2015), was earlier denied by the trial
court after a hearing. In his sole point on appeal, Appellant argues
that the 2017 amendment to the “Stand Your Ground” law, which
shifts the burden of proof from the defendant to the prosecution,
should be applied to his case, entitling him to a new pre-trial
immunity hearing. See Martin v. State, 43 Fla. Law Weekly D1016
(Fla. 2d DCA May 4, 2018); see also Fuller v. State, 43 Fla. L.
Weekly D2237 (Fla. 5th DCA Sept. 28, 2018); Catalano v. State, 43
Fla. L. Weekly D1622 (Fla. 2d DCA July 18, 2018).

      We have recently approved the retroactive application of
chapter 2017-72, §§ 1-2, Laws of Florida. See Mayers v. State, Case
No. 1D18-2926, 2018 WL 6598716 (Fla. 1st DCA Dec. 17, 2018)
(citing Commander v. State, 246 So. 3d 1303 (Fla. 1st DCA 2018)
(citing Martin with approval)); see also Boston v. State, 43 Fla. L.
Weekly D2670 (Fla. 1st DCA Nov. 30, 2018); Edwards v. State, 43
Fla. L. Weekly D2345, D2345 n.1 (Fla. 1st DCA Oct. 16, 2018)
(reading Commander to mean that “in this district we have applied
the amendment retroactively”). Consequently, in accordance with
Martin and Catalano—both involving direct criminal appeals
following the imposition of a judgment and sentence—we reverse
Appellant’s conviction and remand for the trial court to conduct a
new “Stand Your Ground” immunity hearing at which the State
would bear the burden of proof, with the statutorily imposed
quantum of proof being clear and convincing evidence. §
776.032(4), Fla. Stat. (2017). As in Martin, if, after the hearing, the
trial court concludes that Appellant is entitled to immunity, “it
shall enter an order to that effect and dismiss the information with
prejudice.” 43 Fla. L. Weekly at D1018 (citing McDaniel v. State,
24 So. 3d 654, 657 (Fla. 2d DCA 2009)). If, on the other hand, the
trial court determines that Appellant is not entitled to immunity
from prosecution, it shall enter an order containing its findings
and reinstate Appellant’s convictions. Id.

     Finally, as we did in Mayers, 2018 WL 6598716 at * 2, we
certify conflict with Love v. State, 247 So. 3d 609 (Fla. 3d DCA),
rev. granted Case No. SC18-747, 2018 WL 3147946 (Fla. Jun. 26,
2018), and Hight v. State, 43 Fla. L. Weekly D1800 (Fla. 4th DCA
Aug. 8, 2018), both of which hold the 2017 amendment operates
prospectively only.

   REVERSED and REMANDED with instructions; CONFLICT
CERTIFIED.

MAKAR, OSTERHAUS, and JAY, JJ., concur.




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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Andy Thomas, Public Defender, and Greg Caracci, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General; Christopher J. Baum, Deputy
Solicitor General; Amit Agarwal, Solicitor General; Edward M.
Wenger, Chief Deputy Solicitor General, Tallahassee, for Appellee.




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