       Third District Court of Appeal
                               State of Florida

                            Opinion filed April 8, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                 No. 3D14-2675
                            Lower Tribunal No. 13-26651
                               ________________


                               Eduardo Viera,
                                    Petitioner,

                                        vs.

                            The State of Florida,
                                   Respondent.



     A Case of Original Jurisdiction – Prohibition.

     Michael S. Goodman (Hollywood), for petitioner.

     Pamela Jo Bondi, Attorney General, for respondent.


Before WELLS, SUAREZ, and SALTER, JJ.

     SUAREZ, J.

     Eduardo Enrique Viera petitions this Court for a writ of prohibition seeking

review of the circuit court's order denying his motion to dismiss pursuant to
Section 776.032, Florida Statutes (2011), the criminal charges of attempted murder

with a deadly weapon and/or aggravated battery. We deny the petition for writ of

prohibition.

      Viera was charged with attempted murder for assaulting Richard Osorio

with a screwdriver.    Prior to trial, Viera claimed immunity from prosecution

pursuant to section 776.032(1), Florida Statutes (2011). 1 At a pretrial evidentiary

hearing to determine the factual basis for the applicability of immunity,2 the trial
1 § 776.032 (1), Florida Statutes (2011), also known as the Stand Your Ground law,

provides:

     A person who uses or threatens to use force as permitted in s. 776.012,
     s. 776.013, or s. 776.031 is justified in such conduct and is immune
     from criminal prosecution and civil action for the use or threatened use
     of such force by the person . . .”

§ 776.012(2), Florida Statutes (2014) provides:

      (2) A person is justified in using or threatening 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. 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
     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.
2 The trial court correctly applied the standard enunciated in Peterson v. State, 983
So. 2d 27 (Fla. 1st DCA 2008), as adopted by this Court in State v. Yaqubie, 51
So. 3d 474, 475-76 (Fla. 3d DCA 2010), to determine whether a preponderance of
the evidence showed whether Viera is immune from prosecution under section
776.032. When immunity under this law is properly raised by a defendant, the trial
court must decide the matter by confronting and weighing only factual disputes.
Dennis v. State, 51 So. 3d 456, 459 (Fla. 2010); Peterson, 983 So. 2d at 29–30.


                                         2
court heard testimony from the victim Richard Osorio, the defendant Viera, and

from Robert Georgi, a third party present at the scene of the offense. Viera

testified that he drove his friend Georgi to a house to pick something up. As he sat

waiting for Georgi under the carport at the house, Osorio drove up with a woman,

who remained in the car. Viera testified that Osorio got out of the car with

something in his hand. As Osorio approached Viera, he displayed a knife and

demanded money from Viera. Viera testified he got up, reached into his pocket,

took out a screwdriver and lunged back at Osorio in self-defense. Viera admitted

to stabbing Osorio with the screwdriver because Osorio allegedly kept lunging at

him and he was trying to defend himself. Viera claims that Osorio threatened him

with a knife as “payback” for some past incident.

      The victim, Osorio, testified that he had no weapon and did not provoke the

defendant’s attack. Osorio testified that he drove a woman to the house, got out

and went inside to find someone. When he could not find the person, he decided to

wait on the couch under the carport, where Viera was also sitting. When Viera

made a rude comment about the woman in the car, Osorio retorted.             Osorio

testified that at that moment, Viera jumped up and stabbed him in the knee with a

screwdriver. Viera told Osorio that the stabbing was payback from an incident

between them that occurred some time ago. As Osorio got up to run away, Viera

followed and stabbed Osorio a second time in the back side of his left arm, again in



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his left elbow, and four times in the back. Osorio ran to his car to escape from

Viera, who chased him around the vehicle. Osorio testified that Viera told him to

leave or he would kill him. Osorio was able to get inside his car and drive away.

Osorio denied attacking Viera with the knife and asking for money.

      Georgi, Viera’s acquaintance, testified that he did not see Osorio threaten

Viera or brandish any weapon. Georgi testified that as he returned downstairs he

noticed that Viera had something in his hand and that he was chasing Osorio, who

was unarmed, around a car. He also noticed Osorio was moving slowly and

appeared to be hurt. After Viera chased Osorio around the car, Georgi saw Osorio

get into the car and leave. Viera never called the police, and did not speak of the

incident to Georgi. Georgi additionally testified that sometime after Viera’s arrest,

Viera’s father visited Georgi and asked him to change his testimony to say that

Osorio was armed. Georgi explained that he refused to change his testimony. The

trial court observed that the testimonial facts were very much in dispute, and the

physical evidence was inconsistent with the defendant’s version of the events. 3

      In reviewing a petition for writ of prohibition, this Court must consider the

merits of the defendant’s motion to dismiss in the same manner as if it were on

direct appeal. See Sutton v. State, 975 So. 2d 1073, 1077–78 (Fla. 2008); Hair v.
3 Photos of the crime scene introduced at the evidentiary hearing corroborated

Osorio's testimony, as there was blood all around his car. The trial court observed
that Osorio’s wounds were located in bodily areas only accessible to Viera if
Osorio had been turning away from his attacker. Viera was not injured.


                                         4
State, 17 So. 3d 804, 805 (Fla. 1st DCA 2009), review denied, 60 So. 3d 1055 (Fla.

2011). Thus, we review the court's legal findings de novo and we review the

court's factual findings for competent, substantial evidence. Hair, 17 So. 3d at 805.

The trial court's ruling comes to this Court “clothed with a presumption of

correctness and the court must interpret the evidence and reasonable inferences and

deductions derived therefrom in a manner most favorable to sustaining the trial

court's ruling.” Terry v. State, 668 So. 2d 954, 958 (Fla. 1996); Smith v. State, 719

So. 3d 1018, 1021 (Fla. 3d DCA 1998).

      As stated in Mobley v. State, 132 So. 3d 1160 (Fla. 3d DCA 2014), the

objective standard is to be applied by a trial court in evaluating the factual

circumstances presented in a Stand Your Ground motion to dismiss. That standard

requires the court to determine whether, based on circumstances as they appeared

to the defendant when he or she acted, a reasonable and prudent person situated in

the same circumstances and knowing what the defendant knew would have used

the same force as did the defendant. See Toledo v. State, 452 So. 2d 661, 663 (Fla.

3d DCA 1984) (finding a person in the exercise of his right of self-defense may use

only such force as a reasonable person, situated as he was and knowing what he

knew, would have used under like circumstances); see also Chaffin v. State, 121

So. 3d 608 (Fla. 4th DCA 2013); Price v. Gray's Guard Service, Inc., 298 So. 2d

461, 464 (Fla. 1st DCA 1974).



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       The defendant asserts that Mobley supports his petition. It does not. In

Mobley, there was no inconsistent testimony; the incident was caught on

surveillance cameras, and the video showed the victims’ clear provocation of the

defendant.4   The only relevant inquiry was whether, given the totality of the

circumstances leading up to the attack, the appearance of danger was so real that a

reasonably cautious and prudent person under the same circumstances would have

believed that the danger could be avoided only through the use of deadly force.

Mobley, 132 So. 3d at 1166. The appellate court found Mobley immune from

4   The majority in Mobley stated,

       The events that transpired next [the incident that was the basis for
       Mobley’s Stand-Your-Ground defense] were captured on a security
       camera recording made outside the restaurant, and, for the most part,
       are beyond dispute.

       ....

        [T]he shooting at issue did not occur in a vacuum. Mobley did not
       shoot two innocent bystanders who just happened upon him on a
       sidewalk. The record—as corroborated by a video of the events—is
       that (1) Mobley found himself in the middle of a violent, unprovoked
       attack on a companion who was standing right next to him, by one of
       two men who earlier had engaged in an altercation to which he was a
       witness; (2) after the initial violent attack on Mobley's friend, the
       attacker immediately turned his attention to Mobley; (3) less than four
       seconds after that, the first attacker was joined by the second man
       involved in the altercation inside the restaurant; and (4) when the
       second man reached under his shirt after rushing up to join his
       companion who had not abandoned the field, Mobley believed the
       second man was reaching for a weapon to continue the attack.

Mobley v. State, 132 So. 3d at 1163, 1166 (Fla. 3d DCA.


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prosecution where the record supported his reasonable fear of imminent death or

great bodily harm.

      In evaluating Viera’s case, the trial court properly applied an objective

standard to the totality of the circumstances. The court took into consideration the

conflicting testimony of defendant Viera, victim Osorio, and witness Georgi, as

well as the physical evidence. Competent substantial evidence supports Osorio’s

testimony and completely contradicts Viera’s version of the events.        On this

record, we agree with the trial court that, “in observing and weighing the

credibility of the testimony of all the witnesses, including the Defendant, and

evaluating the physical evidence in this case, it is evident that the Defendant’s

testimony lacks credibility and is purely self-serving . . . it was unreasonable for

the Defendant to attack Osorio as there is no evidence that he was in reasonable

fear of imminent death or great bodily harm.” We conclude that Viera is not

immune from prosecution under section 776.031-.032, Florida Statutes (2011) and

deny the petition for writ of prohibition.

      Petition denied.

      WELLS, J., concurs.

                                                                    Viera v. State
                                                              Case No. 3D14-2675

      SALTER, J. (concurring in result).




                                             7
        I concur that the petition for prohibition in this Stand Your Ground5 case

should be denied, based on the record before us. For the reasons explained in my

dissenting opinion in Mobley v. State, 132 So. 3d 1160, 1167-70 (Fla. 3d DCA

2014) (Salter, J., dissenting), however, I respectfully disagree with my colleagues’

description of the record in Mobley in the majority opinion in the present case.

        Because the majority’s summary of Mobley is not an essential part of our

consideration of the case at hand, and based on the record before us, I concur that

Viera’s petition must be denied.




5   § 776.032, Fla. Stat. (2011).

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