       Third District Court of Appeal
                               State of Florida

                          Opinion filed August 29, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D18-1500
                         Lower Tribunal No. 15-12893
                             ________________


                              Brendan Sexton,
                                    Petitioner,

                                        vs.

                        The State of Florida, et al.,
                                  Respondents.



      A Case of Original Jurisdiction—Prohibition.

      Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant
Public Defender, for petitioner.

      Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney
General; Patricia Gladson, General Counsel, and Gabriela Jimenez Salomon,
Assistant General Counsel, for respondents.


Before ROTHENBERG, C.J., and FERNANDEZ and SCALES, JJ.

      SCALES, J.
      Petitioner, Brendan Sexton, seeks a writ of prohibition directing the trial

court to relieve him from criminal prosecution for attempted first degree murder

for a shooting that occurred on June 23, 2015, on grounds that he is immune from

prosecution under Florida’s Stand Your Ground Law, section 776.032 of the

Florida Statutes (2017). For the following reasons, we deny the petition.

      Before Sexton filed his motion below arguing that he is immune from

criminal prosecution, the Florida Legislature amended section 776.032, effective

June 9, 2017, by adding 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).

§ 776.032(4), Fla. Stat. (2017); Ch. 2017-72, § 1, Laws of Fla.       In the subject

order denying Sexton’s immunity motion, following this Court’s recent decision in

Love v. State, 247 So. 3d 609 (Fla. 3d DCA 2018), the trial court rejected Sexton’s

assertion that subsection (4) applied retroactively to conduct occurring prior to the

amendment’s June 9, 2017 effective date. Applying the version of section 776.032

in effect when the shooting occurred (on June 23, 2015), the trial court found that

Sexton had failed to meet his burden of demonstrating, by a preponderance of the

evidence, that he was entitled to immunity from criminal prosecution.




                                         2
      In the instant petition, Sexton does not challenge the merits of the trial

court’s ruling; rather, Sexton argues only that the new standard, subsection (4),

applies retroactively and that the trial court should be directed to apply the new

standard in this case.

      As Sexton rightly acknowledges, the circuit court was bound by this Court’s

decision in Love when considering Sexton’s immunity motion, notwithstanding

our sister court’s determination, in Martin v. State, 43 Fla. L. Weekly D1016 (Fla.

2d DCA May 4, 2018), that subsection (4) is retroactive. See State v. Washington,

114 So. 3d 182, 185 (Fla. 3d DCA 2012).      We therefore deny the instant petition,

and also deny Sexton’s request to hold this petition in abeyance pending the

Florida Supreme Court’s disposition of Love v. State, SC18-747.1

      Petition denied.




1 In Love, this Court certified conflict with the Second District’s Martin opinion.
Love thereafter sought to invoke the discretionary jurisdiction of the Florida
Supreme Court. The Florida Supreme Court docket indicates that the Court has
accepted jurisdiction in Love, and that the case is currently undergoing briefing on
the merits. See Love v. State, SC18-747. Sexton is, therefore, not without
potential remedy as he is within the appellate pipeline on this issue.

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