         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-3083
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BLAIR ALEXANDRIA EDWARDS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Escambia County.
W. Joel Boles, Judge.

                        October 16, 2018


BILBREY, J.

     Appellant challenges the judgment and sentence entered
after her no contest plea with reservation of her right to appeal
the trial court’s denial of her motion to dismiss. Appellant’s
motion to dismiss was based on the statutory immunity from
prosecution provided by section 776.032, Florida Statutes (2017),
where the use of force is justified pursuant to section 776.012,
Florida Statutes.

     At the motion hearing, the State conceded that Appellant’s
motion established a prima facie case that Appellant’s use of
force was justified and that the burden of proof was thus on the
State to overcome that prima facie case with clear and convincing
evidence to the contrary. 1 § 776.032(4), Fla. Stat. (2017). 2 After
all the testimony presented at the hearing on the motion to
dismiss, the trial court found that the State had met its burden of
proof by clear and convincing evidence for one count of the two-
count information. The trial court thus denied the motion to
dismiss one count of the two-count information and granted
dismissal of the other count pertaining to the other alleged
victim. 3

     The trial court applied the correct standard, weighed the
conflicting evidence, and determined the credibility of the
witnesses in reaching its decision. As described in N.L. v.
Department of Children and Family Services, 843 So. 2d 996, 999
(Fla. 1st DCA 2003):

    1   The question of whether the amendment to section
776.032(4), Florida Statutes (2017), resulting from chapter 2017-
72, Laws of Florida, which shifts the burden of proof to the State,
is only prospective or is retroactive is currently before the Florida
Supreme Court. See Love v. State, 247 So. 3d 609 (Fla. 3d DCA
2018), rev. granted, SC18-747, 2018 WL 3147946 (Fla. Jun. 26,
2018). However, in this district we have applied the amendment
retroactively and have held that the State’s acceptance of the
burden of proof below “is consistent with the statute in effect at
the time of the evidentiary hearing.” Commander v. State, 246
So. 3d 1303, 1303 (Fla. 1st DCA 2018). Given the State’s
acceptance of the burden here, the outcome of Love before the
Florida Supreme Court is likely immaterial in this case.
    2  As Judge Lucas noted in Martin v. State, -- So. 3d --, 43 Fla.
L. Weekly D1016, D1017 n.3, 2018 WL 2074171, *2 n.3 (Fla. 2d
DCA May 4, 2018), “[t]he term ‘burden of proof’ is often criticized
for its imprecision; whether it is meant as a burden to initially
present evidence or a burden to ultimately persuade a finder of
fact.” As further noted in Martin, the use of “burden of proof” in
the amended statute refers “to the burden of persuasion because
the evidentiary threshold of ‘clear and convincing evidence’ is a
measurement of that type of burden.” Id.
    3   The State does not challenge the dismissal of that count
via cross-appeal.

                                 2
    Clear and convincing evidence is defined as “an
    intermediate level of proof [that] entails both a
    qualitative and quantitative standard. The evidence
    must be credible; the memories of witnesses must be
    clear and without confusion; and the sum total of the
    evidence must be of sufficient weight to convince the
    trier of fact without hesitancy.”

     Even if the appellate court “may have decided this case
differently had we been the trier of fact, ‘it is not the function of
this court to reweigh the evidence and substitute our judgment
for that of the trial court.’” J.B. v. C.S., 186 So. 3d 1142, 1143
(Fla. 1st DCA 2016) (quoting In the Interest of R.D.D., 518 So. 2d
412, 415 (Fla. 2d DCA 1988)). The record in this case includes
competent substantial evidence to support the trial court’s
determination that the State presented clear and convincing
evidence to overcome Appellant’s prima facie case for the charge
in question.

    Accordingly, the judgment on appeal is AFFIRMED.

WETHERELL and M.K. THOMAS, 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 Megan Long, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Sharon S. Traxler,
Assistant Attorney General, Tallahassee, for Appellee.




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