          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                           No. 1D18-36
                  _____________________________

BRYANT COMMANDER,

    Petitioner,

    v.

STATE OF FLORIDA,

    Respondent.
                  _____________________________


Petition for Writ of Prohibition – Original Jurisdiction.


                           July 9, 2018


PER CURIAM.

    Bryant Commander was charged with aggravated assault
with a firearm based on an incident that occurred in a Walmart
parking lot in November 2016. He filed a motion to dismiss the
charges under the Stand Your Ground law (§ 776.032, Fla. Stat.)
in July 2017. The trial court denied the motion after an
evidentiary hearing.

     Commander sought review of the trial court’s ruling by filing
a petition for writ of prohibition in this court. In the petition,
Commander argued that the trial court erred by imposing the
burden of proof on him to establish his immunity from
prosecution under the Stand Your Ground law. We ordered the
state to show cause why the petition should not be granted, and
in response, the state conceded error based on the prosecutor’s
agreement at the evidentiary hearing that the state had the
burden to prove that Commander was not immune from
prosecution under the Stand Your Ground law.

     We accept the state’s concession of error because it is
supported by the record and is consistent with the statute in
effect at the time of the evidentiary hearing. See § 776.032(4),
Fla. Stat. (2017) (created by chapter 2017-72, Laws of Florida,
effective June 9, 2017); see also Martin v. State, 2018 WL
2074171 (Fla. 2d DCA May 4, 2008) (holding that the 2017
amendment changing the burden of proof under the Stand Your
Ground law was procedural in nature and, thus, could be applied
retroactively in cases involving offenses committed prior to the
amendment’s effective date); but see Love v. State, 2018 WL
2169980 (Fla. 3d DCA May 11, 2018) (certifying conflict with
Martin and holding that the 2017 amendment changing the
burden of proof under the Stand Your Ground law was
substantive in nature and could not be applied retroactively).
Accordingly, we grant the petition, quash the order denying
Commander’s motion to dismiss, and remand for the trial court to
reconsider the motion based on the evidence presented at the
hearing and the state’s burden of proof under section 776.032(4).

    PETITION GRANTED.

ROBERTS, WETHERELL, and OSTERHAUS, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Rudolph C. “Rusty” Shepard, Jr., Jean Marie Downing, and Chad
R. Templeton of Shepard Law, Panama City, for Petitioner.

Pamela Jo Bondi, Attorney General, and Quentin Humphrey,
Assistant Attorney General, Tallahassee, for Respondent.

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