          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D18-2926
                  _____________________________

CLARK DANIEL MAYERS,

    Petitioner,

    v.

STATE OF FLORIDA,

    Respondent.
                  _____________________________


Petition for Writ of Prohibition – Original Jurisdiction.

                        December 17, 2018


BILBREY, J.

    Petitioner Clark Daniel Mayers seeks a writ of prohibition
directing the trial court to dismiss the second degree murder and
attempted first degree murder charges currently pending against
him based on the Stand Your Ground immunity provided in
section 776.032, Florida Statutes. The charges against Petitioner
arose out of an incident which occurred on March 5, 2015. After
conducting an immunity hearing on February 23, 2018, the trial
court entered a detailed written order which determined that the
evidence as to whether Petitioner was acting in self-defense was
inconclusive. The trial court held that a defendant had the
burden to prove immunity because an amendment to section
776.032 applied only prospectively and as such denied immunity
to Petitioner. The trial court also held in the alternative that had
the burden of proof been on the State, the State failed to meet its
burden to show that Petitioner was not entitled to immunity.
Because we have recently approved the retroactive application of
chapter 2017-72, §§ 1-2, Laws of Florida, which took effect June
9, 2017, and which shifted the burden of proof from the defendant
to the prosecution, we grant the petition. 1 See § 776.032(4), Fla.
Stat.

    In Commander v. State, 246 So. 3d 1303 (Fla. 1st DCA 2018),
we were faced with the question of the retroactive application of
the amendment to section 776.032(4). There, the State conceded
error on appeal because the prosecutor had agreed “the state had
the burden to prove that [defendant] was not immune from
prosecution under the Stand Your Ground law.” Commander,
246 So. 3d at 1303. We accepted the State’s concession of error in
Commander and cited with approval Martin v. State, 43 Fla. L.
Weekly D1016, 2018 WL 2074171 (Fla. 2d DCA May 4, 2018). In
Martin, the Second District determined that the statutory
amendment to section 776.032(4) was procedural and therefore
should be applied retroactively to shift the burden from the
defendant to the prosecution. 2


    1 “In the context of the denial of a motion to dismiss on Stand
Your Ground immunity, prohibition has typically been the
preferred remedy because the issue involves a determination of
whether the circuit court has continuing jurisdiction over the
defendant.” Rosario v. State, 165 So. 3d 852, 854 (Fla. 1st DCA
2015).
    2  Because the burden of proof in a criminal prosecution stems
from “the presumption of innocence which attends the defendant
throughout the trial,” Florida’s civil case precedent relied on in
Martin in holding the burden of proof to be procedural and not
substantive would not apply to the State’s burden of proof at trial
for the offenses charged. See Reynolds v. State, 332 So. 2d 27, 29
(Fla. 1st DCA 1976); see also Estelle v. Williams, 425 U.S. 501,
503 (1976) (holding that the “presumption of innocence, although
not articulated in the Constitution, is a basic component of a fair
trial”); Cordell v. State, 157 Fla. 295, 296, 25 So. 2d 885, 886
(1946) (holding that the presumption of innocence is fundamental
law and well-established in Florida).

                                2
     In Edwards v. State, 43 Fla. L. Weekly D2345, D2345 n.1,
2018 WL 4997631, *1 n.1 (Fla. 1st DCA Oct. 16, 2018), we read
Commander to mean that “in this district we have applied the
amendment retroactively.” The retroactive application of the
statute was also approved by the Fifth District in Fuller v. State,
43 Fla. L. Weekly D2237, 2018 WL 4659067 (Fla. 5th DCA Sept.
28, 2018).

     The Third and Fourth Districts have set forth cogent
arguments that the retroactive application of the amendment to
the burden of proof would violate the savings clause in article X,
section 9 of the Florida Constitution. See Love v. State, 247 So.
3d 609 (Fla. 3d DCA 2018), rev. granted, SC 18-747, 2018 WL
3147946 (Fla. Jun. 26, 2018); Hight v. State, 43 Fla. L. Weekly
D1800, 2018 WL 3769191 (Fla. 4th DCA Aug. 8, 2018). The
courts in Love and Hight held therefore that the amendment to
section 776.032(4) operated only prospectively. The court in
Hight recognized that we held to the contrary in Commander and
certified conflict. Ultimately, the Florida Supreme Court will
have to determine which view is correct, and we therefore certify
conflict with Love and Hight.

    Based on Commander, Martin, and Fuller, we grant the
petition, quash the order denying Petitioner’s motion to dismiss,
and remand for the trial court to discharge Petitioner pursuant to
the trial court’s alternative finding that the State did not meet its
burden if the amendment to the burden of proof in section
776.032(4) was applied retroactively.

    PETITION GRANTED; CONFLICT CERTIFIED.

ROBERTS and MAKAR, JJ., concur.

                  _____________________________

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



                                 3
Michael Ufferman, Tallahassee, for Petitioner.

Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez,
Assistant Attorney General, Tallahassee, for Respondent.




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