         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                          No. 1D18-1867
                  _____________________________

WILLIAM H. FLETCHER,

    Petitioner,

    v.

STATE OF FLORIDA,

    Respondent.
                  _____________________________


Petition for Writ of Prohibition—Original Jurisdiction.


                          June 12, 2019




WINOKUR, J.

     William H. Fletcher seeks a writ of prohibition, claiming that
the trial court erred in denying him immunity from prosecution
under section 776.032, Florida Statutes. We grant the petition.

                                I.

    Fletcher was charged with one count of aggravated battery
with a firearm, alleging that he shot the victim, Randy Parker, in
the leg. Fletcher moved to dismiss the charge, asserting
immunity from prosecution pursuant to section 776.032, Florida
Statutes, the “Stand Your Ground” law.
     During the immunity hearing, Fletcher, a bail bondsman
with a concealed weapons permit, testified that the shooting
constituted justifiable use of force. Fletcher testified that he and
his brother had driven to Parker’s home out of concern for their
sister who was in a troubled relationship with Parker. Fletcher
believed that Parker was violent and that Parker almost always
carried a firearm on his person.

     After arriving at Parker’s home, Fletcher called 911 and
walked to a nearby stop sign to inform police of the location.
Fletcher then approached Parker’s home and encountered his
brother having a physical confrontation with Parker. Fletcher
observed Parker reaching for his waistband. Fletcher brandished
his firearm and warned Parker to stop. Parker made an
aggressive move towards Fletcher’s brother, causing Fletcher to
fire a shot that struck Parker in his leg. After injuring Parker,
Fletcher helped him back into his home. Fletcher then drove to
the police station, waived his rights, and agreed to be
interviewed.

     Fletcher’s sister testified that she was in an abusive
relationship with Parker and that she wanted to leave Parker’s
home when her brothers arrived. Parker would not let her leave
and confronted Fletcher’s brother on the front lawn. Fletcher’s
sister also testified that she believed Parker was armed.

    Parker and his mother, who both resided at the home where
the shooting occurred, testified that Parker and Fletcher’s sister
were at home when someone knocked on the door, and when
Parker answer it, Fletcher and his brother were standing outside.
Parker testified that Fletcher’s brother was confrontational with
him and that when he saw Fletcher with a firearm, attempted to
knock it out of his hand. Parker denied threatening to kill
Fletcher’s brother. Parker’s mother also testified that Fletcher
was behind Parker holding a gun to his head.

     The trial court denied immunity. The court noted that the
testimony of Parker and his mother conflicted with the testimony
of Fletcher, his sister, and the 911 recordings. The court
concluded that the 911 recording provided “the most credible

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recounting of the events” and, as a result, Fletcher was not
present during the “initial scrum” between Parker and Fletcher’s
brother. The court also stated that it was “clear that [Fletcher]
issued a warning before firing his weapon.” The court credited
Fletcher and his sister’s testimony regarding Parker’s “violent
and threatening behavior.” Moreover, the court found that Parker
“had a loose fitting shirt that could have hidden a gun.” Thus, the
court concluded that “[t]he fact that [Parker] did not actually
have a firearm is irrelevant to the issues here, as all that is
required was a reasonable fear that such a weapon was present
and was about to be used.”

     Even though the trial court found that Fletcher “appear[ed]
to have a viable claim for immunity for his actions,” it denied
immunity because it determined that Fletcher was trespassing on
Parker’s property when the shooting occurred. As a result,
Fletcher was not where he was legally allowed to be, and was
therefore not entitled to Stand Your Ground immunity:

    [Fletcher] and his brother were not invitees on that
    property, and had no right to remain therein. Even if the
    Court assumes they had a justification for trespassing
    on the property because they were concerned for their
    sister’s safety, that justification would not excuse their
    trespass. They could have waited for the police to arrive
    before making contact at the house, and their concern
    for their sister’s safety would not justify remaining on
    the property after she appeared at the door and her
    safety was confirmed. [Fletcher] and his brother Rashad
    had no right to be on the property at the time of the
    shooting, and were therefore engaged in criminal
    activity—a trespass—in a place where they had no right
    to be. They had an obligation to retreat, and could not
    simply stand their ground against a potential threat of
    deadly force. There is no right to immunity under such
    circumstances.

(citation omitted).




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                                 II.

     This Court has recognized that a writ of prohibition may be
sought to challenge a trial court’s denial of immunity under
Florida’s Stand Your Ground law. Peterson v. State, 983 So. 2d 27
(Fla. 1st DCA 2008). A trial court’s denial of pre-trial self-defense
immunity involves a mixed standard of review. Hair v. State, 17
So. 3d 804, 805 (Fla. 1st DCA 2009). The trial court’s factual
findings must be supported by competent substantial evidence.
Id. Legal conclusions, however, are reviewed de novo. Id.

     Florida’s Stand Your Ground law confers immunity from
prosecution if an individual uses deadly force in accordance with
section 776.012(2), Florida Statutes. § 776.032(1), Fla. Stat.
Section 776.012(2), allows an individual to use or threaten to use
deadly force “if he or she reasonably believes that using or
threatening to use such force is necessary to prevent imminent
death or great bodily harm to himself or herself or another or to
prevent the imminent commission of a forcible felony.” An
individual has no duty to retreat and “has the right to stand his
or her ground,” but only “if the person using or threatening to use
the deadly force is not engaged in a criminal activity and is in a
place where he or she has a right to be.” Id.

                                III.

     At the outset, it is worth noting that the trial court
discredited Parker’s testimony, as well as the testimony of his
mother, in favor of the testimony adduced from Fletcher and his
sister because the latter testimony was corroborated by the 911
recordings. More importantly, the trial court found that Fletcher
had objectively reasonable fear that Parker was about to use a
firearm on his brother. The only reason the trial court denied
immunity was its belief that the evidence showed that Fletcher
was trespassing on Parker’s property and therefore, not where he
had a right to be. As a result, this Court’s analysis is limited to
whether there was competent, substantial evidence to support




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the trial court’s finding that Fletcher was trespassing on Parker’s
property when the shooting occurred. 1

     The only evidence adduced that indicated that Fletcher was
trespassing at the time of the shooting came from the testimony
of Parker and his mother. The trial court generally discredited
their testimony. They both stated that Fletcher was with his
brother when the physical altercation between Parker and
Fletcher’s brother began. This version of events is contradicted by
the 911 recordings, which the trial court found supported
Fletcher’s testimony that he was away from the property when
the altercation began. Parker’s own testimony that Fletcher was
in front of him during the incident also undermines his mother’s
testimony since she stated that Fletcher was behind Parker
holding a gun to his head.

     The State relies on Fletcher’s testimony during cross-
examination that he was not invited to Parker’s property.
Immediately after stating this, however, Fletcher testified that
he was not on the property until he thought Parker was going to
shoot his brother. Fletcher added that before this occurred he was
on the street. Fletcher’s testimony is also bolstered by the
testimony of his accident reconstructionist expert witness, who
opined that based on the location of the street sign relative to
Parker’s driveway, Fletcher was on the public sidewalk and

    1  In 2017, the Legislature amended the Stand Your Ground
statute, putting the burden of proof on the State to prove that a
defendant is not entitled to immunity by clear and convincing
evidence. § 776.032(4), Fla. Stat. Since the incident here occurred
prior to the statute’s amendment, the State argues that this case
is subject to the old burden requiring Fletcher to prove that he is
entitled to immunity by a preponderance of the evidence. See
Peterson, 983 So. 2d at 29. This Court, however, has held that the
change in the burden of proof applies retroactively. Commander
v. State, 246 So. 3d 1303, 1304 (Fla. 1st DCA 2018). Regardless,
burden of proof is irrelevant here because the trial court
explicitly ruled that “it need not reach the issue of whether the
former [standard] or amended [standard] applies [because] [t]he
result would be the same under either version of the statute.”

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approximately five feet away from Parker when the shooting
occurred. Moreover, Parker’s own testimony that Fletcher was
approximately three to five feet away from him supports the
expert testimony.

     Most importantly, the trial court’s order seems to conflate
the actions of Fletcher and his brother as it relates to its finding
that Fletcher was trespassing. Specifically, the order uses the
word “they” in explaining why Fletcher was not allowed to be on
the property:

    Even if the Court assumes they had a justification for
    trespassing on the property because they were concerned
    for their sister’s safety, . . . . [Fletcher] and his brother
    Rashad had no right to be on the property at the time of
    the shooting, and were therefore engaged in criminal
    activity—a trespass—in a place where they had no right
    to be. They had an obligation to retreat and could not
    simply stand their ground . . . .

(emphasis added).

    While it is undisputed that Fletcher’s brother was on
Parker’s property since he was the one who knocked on the door,
Fletcher is not precluded from claiming immunity even if his
brother had been trespassing. 2 The trial court seems to have
imputed the actions of Fletcher’s brother onto Fletcher when it
made its factual determinations. 3 Because the record

    2 It is not necessarily clear to us that Fletcher’s brother was
actually trespassing on Parker’s property when he began fighting
with Parker. However, we do not address this question because
Fletcher never raised it as a reason to support his immunity
claim, either below or in his petition.
    3 To be clear, section 776.012(2) permits deadly force if the
person reasonably believes that using such force is necessary to
prevent imminent death or great bodily harm to another, but
adds that “[a] person who uses or threatens to use deadly force in
accordance with this subsection does not have a duty to retreat
and has the right to stand his or her ground if the person using or
                                 6
demonstrates that Fletcher was not on the property when he
determined that his brother was in danger of death or great
bodily harm, it was error to treat him as a trespasser.

                               IV.

     The court found that Fletcher’s use of deadly force was
objectively reasonable under the circumstances. Thus, the only
issue remaining is whether Fletcher had a duty to retreat
because he was not where he was legally allowed to be. We find
that the court erred in concluding that Fletcher was trespassing
when he believed that his brother was in danger of death or great
bodily harm. Accordingly, we find that Fletcher was entitled to
immunity, grant Fletcher’s petition, and quash the order below.

    GRANTED.

WOLF and JAY, JJ., concur.




threatening to use the deadly force is not engaged in a criminal
activity and is in a place where he or she has a right to be.” In
other words, a person who was not in a place where he had a
right to be is still entitled to use deadly force in the defense of
another, but has a duty to retreat. In the defense of another
situation, it is unclear whether the person who uses deadly force,
or the person who is facing death or great bodily harm, bears the
duty to retreat. The court seemed to recognize this, when it
concluded that “[t]hey had an obligation to retreat.” However, it
seems nonsensical that a person who is not facing death or great
bodily harm but is merely protecting someone who is facing such
a threat has a duty to retreat. Because such a person can almost
always retreat (as they are not facing death or great bodily harm)
imposing this duty would gut the defense-of-another claim. While
this seems to be an issue with the order below, we will not
address it further because Fletcher never argued this claim.

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              _____________________________

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


Michael Ufferman of Michael Ufferman Law Firm, P.A.,
Tallahassee, for Petitioner.

Ashley Moody, Attorney General, and Steve Edward Woods,
Assistant Attorney General, Tallahassee, for Respondent.




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