        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FOURTH DISTRICT

                     JOSE RAMON NIEVES RIVERA,
                             Appellant,

                                       v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D16-4328

                              [March 11, 2020]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; James W. McCann, Judge; L.T. Case No. 2015CF000353A.

  Carey Haughwout, Public Defender, and Jessica A. De Vera, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley B. Moody, Attorney General, Tallahassee, and Paul Patti, III,
Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, J.

   Based on the Florida Supreme Court’s opinion in Love v. State, 286 So.
3d 177 (Fla. 2019), we withdraw our previous opinion and issue this
opinion in its place.

    A friendly residential gathering took a tragic turn, resulting in the
shooting death of the gathering’s host. The shooter, Jose Rivera, appeals
his convictions of first-degree murder with a firearm; attempted first-
degree murder with a firearm; aggravated battery with a deadly weapon, a
firearm; and discharging a firearm in public or on residential property. He
raises two issues, both of which we find to be without merit. We write to
address Rivera’s argument that he is entitled to a new Stand Your Ground
Law hearing, 1 as the controlling statute was amended after the hearing,

1 Section 776.032, Florida Statutes, also known as Florida’s Stand Your Ground
Law, “provides for immunity from prosecution when a defendant has used force
in accordance with certain specified statutory circumstances.” Bretherick v.
State, 170 So. 3d 766, 768 (Fla. 2015). When a defendant raises the statutory
immunity, the trial court must conduct “an evidentiary hearing.” Id. at 773. The
and it now provides that once a defendant makes out a prima facie case
for immunity, the state must prove by clear and convincing evidence that
immunity does not apply. Previously, the statute had been interpreted as
requiring defendants to prove by a preponderance of the evidence that
immunity applied. See Bretherick, 170 So. 3d at 775. Based on Love, 286
So. 3d 177, we affirm.

   After Rivera was charged with numerous offenses arising out of his
shooting a firearm and using it to beat one of the victims, he moved to
dismiss based on Florida’s Stand Your Ground Law, section 776.032,
Florida Statutes (2016). The trial court heard evidence and denied the
motion. A jury found Rivera guilty as charged as to most of the offenses.

   Rivera appealed his convictions. Subsequently, an amendment to the
statute went into effect. It provides that “once a prima facie claim of self-
defense immunity from criminal prosecution has been raised by the
defendant at a pretrial immunity hearing, the burden of proof by clear and
convincing evidence is on the party seeking to overcome the immunity from
criminal prosecution.” § 776.032(4), Fla. Stat. (2017); Ch. 2017-72, § 1,
Laws of Fla. Rivera seeks retroactive application of this amendment.

    In Love, the supreme court considered the retroactive application of
section 776.032(4) to pending cases involving criminal conduct alleged to
have occurred prior to the effective date of the statute. See Love, 286 So.
3d at 179. The court entertained the issue based on the conflict between
Love v. State, 247 So. 3d 609 (Fla. 3d DCA 2018), and Martin v. State, 43
Fla. L. Weekly D1016 (Fla. 2d DCA May 4, 2018). Id. The court found that
the amendment does not constitute substantive law, as it “neither
‘declares what acts are crimes’ nor ‘prescribes the punishment therefor.’”
Id. at 185 (quoting State v. Garcia, 229 So. 2d 236, 238 (Fla. 1969)). The
court further found that the amendment constitutes procedural law, as it
modifies the procedure governing immunity determinations. Id. (citing
Dennis, 51 So. 3d at 459). The court also reasoned that it “has recognized
in other contexts that the burden of proof is a procedural matter,” and that
it “has repeatedly referred to Stand Your Ground immunity determinations
as procedural matters, including in the context of the burden of proof.” Id.
at 186.

  The court then turned its attention to whether the procedural
amendment applies retroactively and ultimately determined that it does

trial court must then “decide the factual question of the applicability of the
statutory immunity.” Id. (quoting Dennis v. State, 51 So. 3d 456, 458 (Fla.
2010)).

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not. The court acknowledged that its opinions regarding the retroactivity
of procedural statutes “have not been entirely consistent,” and that some
of its opinions “arguably support” the Second District’s determination in
Martin that the amended statute applies retroactively. Id. at 186-87. But
the court explained that “properly understood, whether a new procedural
statute applies in a pending case will generally turn on the posture of the
case, not the date of the events giving rise to the case.” Id. at 187. The
court elaborated on this “commonsense” approach as follows:

       Of course, the mere fact that a new rule is procedural does
       not mean that it applies to every pending case. A new rule
       concerning the filing of complaints would not govern an action
       in which the complaint had already been properly filed under
       the old regime, and the promulgation of a new rule of evidence
       would not require an appellate remand for a new trial. Our
       orders approving amendments to federal procedural rules
       reflect the commonsense notion that the applicability of such
       provisions ordinarily depends on the posture of the particular
       case.

Id. at 187-88 (emphasis in original) (quoting Landgraf v. USI Film Products,
511 U.S. 244, 275 n.29 (1994)). The court concluded that “section
776.032(4) was intended to and does apply in this ‘commonsense’ and
‘ordinar[y]’ manner,” meaning that it “applies to those immunity hearings,
including in pending cases, that take place on or after the statute’s
effective date.” Id. at 188 (alteration in original). The court summed up:
“Section 776.032(4) is a procedural change in the law and applies to all
Stand Your Ground immunity hearings conducted on or after the statute’s
effective date.” Id. at 190. 2

    This court has concluded that section 776.032(4) is substantive and
does not apply retroactively. See Hight v. State, 253 So. 3d 1137, 1143
(Fla. 4th DCA 2018). But our holding in Hight is no longer good law in
light of the supreme court’s recent opinion in Love, 286 So. 3d 177.




2 The court also addressed the disagreement between the Second and Third
Districts as to the effect of article X, section 9 of the Florida Constitution on the
retroactive application of the amended statute, and it held that the constitutional
provision does not prevent the amended statute from being applied to pending
cases where immunity hearings occur on or after the statute’s effective date. Id.
at 189. The constitutional provision is not at issue in Rivera’s appeal.


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    Based on the supreme court’s holding that section 776.032(4) is a
procedural change that applies to all Stand Your Ground hearings
conducted on or after its effective date, and in light of the fact that Rivera’s
Stand Your Ground hearing occurred before the amended statute’s
effective date, we affirm.

   Affirmed.

MAY and KLINGENSMITH, JJ., concur.

                             *         *         *

   Not final until disposition of timely filed motion for rehearing.




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