         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                          No. 1D18-583
                  _____________________________

ANTOINETTE TYNES,

    Petitioner,

    v.

STATE OF FLORIDA,

    Respondent.
                  _____________________________


Petition for Writ of Prohibition—Original Jurisdiction.


                       December 28, 2018


PER CURIAM.

     Antoinette Tynes moved for immunity under Florida’s Stand
Your Ground law after she was charged with attempted first-
degree murder for stabbing her boyfriend seven times with a knife
in 2016. The trial court denied the motion, and Tynes petitions
this Court for a writ of prohibition.

     At the pretrial immunity hearing in November 2017, the trial
court applied the evidentiary standard outlined in Bretherick v.
State, 170 So. 3d 766, 775 (Fla. 2015), finding that Tynes had the
burden to prove entitlement to immunity by a preponderance of
the evidence. The trial court concluded that Tynes failed to meet
that burden. In 2017, in response to Bretherick, the Legislature
amended the Stand Your Ground law to shift the burden of proof
to the State and to change the quantum of proof required to
overcome a defendant’s claim of immunity. Ch. 2017-72, § 1-2,
Laws of Fla. Now, after the defendant makes a prime facie claim
of immunity, the State bears the burden to prove by clear and
convincing evidence that the defendant is not entitled to
immunity. § 776.032(4), Fla. Stat. (2017). Tynes argues that this
amendment to the Stand Your Ground law applies retroactively to
her 2016 offense, and thus the trial court erred in requiring her to
prove her entitlement to immunity by a preponderance of evidence
and in concluding that she failed to meet that burden.

     Based on this Court’s recent decision in Commander v. State,
246 So. 3d 1303, 1304 (Fla. 1st DCA 2018), wherein this Court held
that the 2017 amendment to the Stand Your Ground law applied
retroactively, Tynes is entitled to relief. See also Martin v. State,
43 Fla. L. Weekly D1016, 2018 WL 2074171 (Fla. 2d DCA May 4,
2018) (holding that the 2017 amendment to section 776.032 is
procedural in nature and therefore can be applied retroactively).
But see Hight v. State, 43 Fla. L. Weekly D1800, D1800 (Fla. 4th
DCA Aug. 8, 2018) (applying the 2017 amendment prospectively
after concluding it was a substantive change in the law); Love v.
State, 247 So. 3d 609 (Fla. 3d DCA 2018) (same and certifying
conflict with Martin), review granted, SC18-747, 2018 WL 3147946
(Fla. Jun. 26, 2018).

     Because the State argues that it met its burden to prove by
clear and convincing evidence that Tynes was not entitled to
immunity, on remand the trial court may reconsider Tynes’ motion
based on the evidence presented at the hearing.

    PETITION GRANTED.

ROWE, KELSEY, and M.K. THOMAS, JJ., concur.

                  _____________________________

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


                                 2
Andy Thomas, Public Defender, and Colleen D. Mullen, Assistant
Public Defender, Tallahassee, for Petitioner.

Pamela Jo Bondi, Attorney General; Edward M. Wenger, Chief
Deputy Solicitor General; Steven E. Woods, Assistant Attorney
General, Tallahassee, for Respondent.




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