          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D18-1993
                 _____________________________

CORRY MENCY,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Suwannee County.
David W. Fina, Judge.



                          June 12, 2019


PER CURIAM.

     In this appeal, the defendant raises two issues. First, he
argues that he is entitled to a new trial based on the trial court’s
failure to sustain his objections to questions asked by the State
during its cross-examination. Second, he argues that he is entitled
to a new self-defense immunity hearing under the Stand-Your-
Ground statutes because the trial court failed to apply the proper
burden of proof. With regards to the first issue, we find no
reversible error. With regards to the second issue, the appellant
makes two arguments, one of which was not properly preserved.
At trial, the appellant essentially argued that the trial court
needed to determine whether section 776.032(4) applied
retroactively. On appeal, the appellant argues that the trial court
failed to make that ruling. However, the trial court stated that
regardless of who had the burden, the appellant was not entitled
to immunity. This ruling implies that the trial court made a ruling
under both standards. Because the trial court applied the correct
standard, the trial court did not err. The appellant also argues
that the trial court failed to assess the evidence presented by the
defense when it ruled on his immunity claim. However, that issue
was not properly preserved for appeal because the appellant failed
to raise that issue to the trial court. See Rodriguez v. State, 609
So. 2d 493, 499 (Fla. 1992) (“It is well settled that the specific legal
ground upon which a claim is based must be raised at trial and a
claim different than that raised below will not be heard on
appeal.”) Accordingly, we affirm the appellant’s judgment and
sentence.

    AFFIRMED.

B.L. THOMAS, C.J., and LEWIS, J., concur; ROBERTS, J., concurs with
written opinion.

                  _____________________________

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

ROBERTS, J., concurring.

     I concur with the majority’s opinion, but write separately to
address the issue of the defendant’s argument that he is entitled
to a new self-defense immunity hearing. This Court has adopted
the position that a defendant is entitled to a new self-defense
immunity hearing when the trial court incorrectly applies section
776.032, Florida Statutes. Aviles-Manfredy v. State, 44 Fla. L.
Weekly D187 (Fla. 1st DCA January 7, 2019) (adopting the
procedure that the trial court must hold a new Stand-Your-Ground
hearing as stated in Martin v. State, 43 Fla. L. Weekly D1016 (Fla.
2d DCA May 4, 2018)). However, the use of that procedure conflicts
with the purpose of the immunity hearing, which is to provide a

                                   2
defendant with a procedural mechanism that allows him to
present his self-defense claim early rather than force him to wait
until trial.

                           Self-Defense

     Florida has long acknowledged the fundamental right of its
citizens to use force to defend themselves or others. Art. I, § 8(a),
Fla. Const. The essential elements of self-defense have largely
remained the same; to wit, a person may use deadly force when it
is reasonably necessary to prevent imminent death or great bodily
harm to the person or to another person. § 776.012, Fla. Stat. Self-
defense was and is an affirmative defense in which the one
asserting self-defense is required to establish a prima facie case of
the elements of the self-defense claim. The burden then rests on
the State to establish that the claim is not justified “to the
exclusion of every reasonable doubt,” which is consistent with the
State’s burden in every criminal case. See § 90.302, Fla. Stat.;
Grady v. State, 176 So. 431, 431 (Fla. 1937) (the burden of
establishing a defendant’s guilt rests with the State). However,
prior to 2005, the claim of self-defense could only be presented as
an affirmative defense at trial.

                 The Stand-Your-Ground Act

     In 2005, the Legislature strengthened the right to self-defense
when it passed Chapter 2005-27, Laws of Florida. That bill
changed the application of the law of self-defense in three major
ways. First, it eliminated the duty to retreat when attacked
outside the home before using lawful deadly force. Ch. 2005-27, §§
2-3, Laws of Fla. Second, the bill created a presumption that a
person had “reasonable fear of imminent . . . death or great bodily
harm” if the person was attacked in his or her home or conveyance.
Ch. 2005-27, § 1, Laws of Fla. Third, the bill provided immunity
from “arrest, detaining in custody, charging or prosecuting” a
person validly exercising his or her right to self-defense. Ch. 2005-
27, § 4, Laws of Fla.

    Immunity from prosecution, the key issue in this case, was
created by adding a new section to chapter 776, Florida Statutes,
which reads as follows:


                                 3
    776.032 Immunity from Criminal prosecution and civil
    action for justifiable use of force. - -

    (1) A person who uses force as permitted in s. 776.012, s.
    776.013, or s.776.031 is justified in using such force and
    is immune from criminal prosecution and civil action for
    the use of such force[.]

     Sections 776.012, 776.013, and 776.031 are the general self-
defense statutes that may be asserted at trial and would have only
been allowed to be asserted at trial without the immunity provided
by section 776.032. Most of the case law refers to this immunity
as “Stand-Your-Ground immunity,” but this is a misnomer because
the immunity applies to all self-defense cases, not just ones in
which standing one’s ground is an element. That is why a better
label is “self-defense immunity.” In fact, the statutes refer to it as
“self-defense immunity.” See § 776.032(4), Fla. Stat. In the
whereas clauses for Chapter 2005-27, Laws of Florida, the
Legislature found “that it is proper for law abiding people to
protect themselves, their families, and others from intruders and
attackers without fear of prosecution or civil action for acting in
defense of themselves and others . . . .” The important thing to
remember for our analysis is that the entire purpose of this
immunity is to provide a mechanism by which a person who is
asserting lawful self-defense may have the defense heard early in
the process to avoid the time and expense of a trial.

     Until 2017, section 776.032 did not specify how this immunity
from arrest, detention, charging, or prosecution was to be
effectuated. In Dennis v. State, 51 So. 3d 456 (Fla. 2010), the
supreme court adopted a procedure from Peterson v. State, 983 So.
2d 27 (Fla. 1st DCA 2008), that required the trial court to hold an
evidentiary hearing when self-defense immunity was alleged to
determine whether that person used “force as permitted is s.
776.012, s. 776.013 or s. 776.031.” Dennis quoted from the section
of Peterson in which the First District said that the burden of proof
in the self-defense immunity hearing was on the defendant by a
preponderance of the evidence, but never adopted this standard.
Dennis, 51 So. 3d at 459-60.

                       Bretherick v. State

                                  4
     Subsequently in Bretherick v. State, 170 So. 3d 766, 779 (Fla.
2015), the supreme court held that at the self-defense immunity
hearing, the defendant was required to prove he or she was
entitled to the immunity by a preponderance of the evidence. In a
dissent joined by Justice Polston, Justice Canady argued that the
burden should be on the State to rebut the prima facie showing of
self-defense beyond a reasonable doubt. Id. at 779-80 (Canady, J.,
dissenting). He accused the majority of not recognizing that,

    The factual question raised by the assertion of Stand
    Your Ground immunity in a pretrial evidentiary hearing
    is the same as the factual question raised by a Stand Your
    Ground Defense presented at trial: whether the evidence
    establishes beyond a reasonable doubt that the
    defendant’s conduct was not justified under the governing
    statutory standard.

Id. at 779.

    Justice Canady stated that the “State does not dispute that a
defendant presenting a Stand Your Ground defense can only be
convicted if the State proves beyond a reasonable doubt that the
defense does not apply.” Id. He further reasoned,

    There is no reason to believe that the Legislature
    intended for a defendant to be denied immunity and
    subjected to a trial when that defendant would be entitled
    to acquittal at trial on the basis of a Stand Your Ground
    defense.

Id. at 780.

              Chapter 2017-72, Laws of Florida

    Subsequent to Bretherick, the Legislature added another
subsection to section 776.032:

    (4) In a criminal prosecution, once a prima facie claim of
    self-defense immunity from criminal prosecution has
    been raised by the defendant in a pretrial immunity
    hearing, the burden of proof by clear and convincing
    evidence is on the party seeking to overcome the

                                5
    immunity from       criminal       prosecution   provided   in
    subsection (1).

Ch. 2017-72, Laws of Fla. According to Senator Rob Bradley, the
sponsor of Senate Bill 128, which became 2017-72, “[t]his bill
corrects the error of the Bretherick decision.” Fla. Sen. Comm. on
Rules, recording of proceedings (Feb. 9, 2017) (Tallahassee)
(Statement            of        Sen.          Rob          Bradley)
(https//thefloridachannel.org/videos/2917-senate-rules-
committee/).

     Since section 776.032(4) was enacted, the district courts have
been split on whether subsection four applies to crimes committed
prior to its adoption. See Commander v. State, 246 So. 3d 1303,
1304 (Fla. 1st DCA 2018) (Mem.) (finding the statute procedural
and that it applies retroactively); Martin v. State, 43 Fla. L.
Weekly D1016 (Fla. 2d DCA May 4, 2018), review pending, No.
SC18-789 (same); Fuller v. State, 257 So. 3d 521, 536-38 (Fla. 5th
DCA 2018) (same); Love v. State, 247 So. 3d 609, 611-12 (Fla. 3d
DCA 2018), review granted, No. SC18-747 (finding the statute
substantive and does not apply retroactively); Hight v. State, 253
So. 3d 1137, 1140 (Fla. 4th DCA 2018), review pending, No. SC18-
1653 (same).

             Presentation of Self-Defense Claims

     There are two ways for a criminal defendant to vindicate his
right to self-defense after he loses his self-defense immunity
hearing. First, if the defendant wants to avoid proceeding to trial,
he may file a petition for writ of prohibition with the appropriate
district court of appeal. Second, the defendant may go to trial and
raise his or her self-defense claim.

     With regard to a writ of prohibition, the district courts of
appeal and the Florida Supreme Court have held that a petition
for writ of prohibition is the appropriate method to freeze the
proceedings in place so a review of the self-defense immunity
ruling may be performed. See Tsavaris v. Scruggs, 360 So. 2d 745,
747 (Fla. 1977) (appropriate procedure to challenge a trial court’s
authority to continue prosecution is through a petition for writ of
prohibition); Rosario v. State, 165 So. 3d 852, 854-55 (Fla. 1st DCA
2015) (Because a writ of prohibition stops the trial court from
                                   6
continuing to prosecute a defendant who should be immune from
prosecution, it is the preferred method to challenge a denial of
motion to dismiss that has occurred after or without an evidentiary
hearing.); Little v. State, 111 So. 3d 214, 216 n.1 (Fla. 2d DCA 2013)
(petition for writ of prohibition is the appropriate mechanism to
challenge the denial of a motion to dismiss based on a self-defense
immunity statute); Joseph v. State, 103 So. 3d 227, 229 (Fla. 4th
DCA 2012) (same). A defendant does not lose his right to present
his self-defense immunity claim to the jury by filing a petition for
writ of prohibition, nor does he lose his right to present the issue
to the jury after an unsuccessful petition for writ of prohibition.
State v. Chavers, 230 So. 3d 35, 39 (Fla. 4th DCA 2017).

    With regard to presenting the claim of self-defense at trial, the
standard has always been that the State is required to prove
beyond a reasonable doubt that the defendant, after a showing of
a prima facie claim of self-defense, did not act in lawful self-
defense. At trial, the finder of fact has always applied the correct
standard whether our state courts were operating under
Bretherick or the subsequently enacted section 776.032(4). This
presentation of the self-defense claim at trial moots and subsumes
any previous error that occurred at the immunity hearing.

                             This Case

     In this case, the defendant’s self-defense immunity hearing
was contemporaneous with his trial, meaning that while there was
no separate immunity hearing, the defendant was allowed to move
for immunity to be imposed based on the evidence adduced at trial.
At the close of the State’s case, and again at the close of evidence,
the defendant moved to dismiss the charges against him based on
his self-defense immunity claim. Each time the defendant moved
to dismiss the charges, he argued that the change in the statute
was procedural and applied retroactively. The State argued that
the change in the statute was substantive and did not apply
retroactively. The State also argued that regardless of who had
the burden of proof, the defendant was not entitled to a dismissal
based on the evidence. Since the trial court did not have a district
court of appeal decision to follow, each time it ruled on the
defendant’s motion, it stated that regardless of which party bore


                                  7
the burden, it thought that the defendant’s self-defense claim was
a question to be resolved by the jury.

     After the evidence was closed and the trial court ruled on all
of the defendant’s motions, it properly instructed the jury with
regards to the defendant’s self-defense claim using the standard
jury instructions. The trial court properly instructed the jury on
what constituted justifiable homicide and justifiable use of deadly
force. It instructed the jury that the State had the burden to prove
that the defendant committed the crime, that the defendant did
not have to present any evidence or prove anything, that if the jury
had any reasonable doubt, it should find the defendant not guilty,
and that if the jury was convinced beyond a reasonable doubt that
the defendant was not justified in using deadly force, it should find
him guilty if all the elements of the crime had been proved. Since
jurors are presumed to follow the law as explained to them, the
defendant’s jury properly evaluated his self-defense claim. Davis
v. State, 121 So. 3d 462, 492 (Fla. 2013).

     On appeal, the defendant argues that because the trial court
stated the defendant’s self-defense claim was a question for the
jury, the trial court failed to apply the correct standard of proof
under section 776.032. Even if the trial court failed to apply the
correct standard, the defendant would not be entitled to another
self-defense immunity hearing, but for this Court’s holding in
Aviles-Manfredy, because he went to trial and his self-defense
immunity claim was fully and properly litigated.

     I believe that we erred in adopting the holding of Martin in
Aviles-Manfredy. Because the defendant did not preserve his
argument that he was entitled to a new self-defense immunity
hearing under Martin and Aviles-Manfredy, this is not an
appropriate case for this Court to revisit Aviles-Manfredy en banc.
Nevertheless, since the supreme court has granted review in
Martin and Love, I expect that the law of self-defense immunity
will soon be clarified.

                  _____________________________




                                 8
Andy Thomas, Public Defender, and Barbara J. Busharis,
Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Virginia Chester Harris,
Assistant Attorney General, Tallahassee, for Appellee.




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