           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                  _____________________________

                          No. 1D17-5190
                  _____________________________

ROY P. BOSTON,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Leon County.
Angela C. Dempsey, Judge.

                        November 30, 2018


ROWE, J.

     Roy P. Boston appeals his judgment and sentence for battery,
asserting that the trial court erred by denying his motion for
mistrial and by applying the wrong standard in ruling on his
motion for Stand Your Ground immunity. We affirm the denial of
the motion for mistrial without further comment. However, based
on this Court’s recent decisions in Commander v. State, 246 So. 3d
1303 (Fla. 1st DCA 2018), and Edwards v. State, 2018 WL 4997631
(Fla. 1st DCA Oct. 16, 2018), we are constrained to reverse the trial
court’s ruling on the Stand Your Ground motion.

    Before trial, the parties argued whether the 2017 amendment
to the Stand Your Ground law, section 776.032(4), Florida
Statutes, would apply to Boston’s offense. Before the amendment,
a defendant, at a pretrial evidentiary hearing, had to prove by a
preponderance of evidence that he was entitled to Stand Your
Ground immunity. Bretherick v. State, 170 So. 3d 766, 775 (Fla.
2015). The amendment to the statute changed both the burden
and quantum of proof required for establishing entitlement to
immunity. Now, when a defendant raises a prima facie claim of
Stand Your Ground immunity, the State must prove by clear and
convincing evidence that the defendant is not entitled to
immunity. § 776.032(4), Fla. Stat. (2017). Boston argued that this
amendment to the Stand Your Ground law was procedural in
nature and therefore applied retroactively to his 2016 offense.

     The trial court rejected Boston’s argument and concluded that
the 2017 amendment was a substantive change in the law, and
therefore, the amendment applied prospectively from the date of
the enactment, over one year after Boston’s offense. The court
determined that Boston had the burden to show entitlement to
immunity by a preponderance of evidence. After the defense
rested, the trial court found that Boston failed to meet this burden
and denied Boston’s motion for immunity. The jury convicted
Boston of battery, and this appeal followed.

     Based on this Court’s recent decisions in Commander and
Edwards, where this Court determined that the 2017 amendment
to the Stand Your Ground law applies retroactively, Boston is
entitled to a new immunity hearing. Commander, 246 So. 3d at
1304; Edwards, 2018 WL 4997631 at *1, n.1. See also Martin v.
State, 43 Fla. L. Weekly D1016, 2018 WL 2074171 (Fla. 2d DCA
May 4, 2018) (holding that the 2017 amendment to section 776.032
is procedural in nature and therefore can be applied retroactively).
But see Love v. State, 247 So. 3d 609 (Fla. 3d DCA 2018) (applying
the 2017 amendment prospectively after concluding it was a
substantive change in the law and certifying conflict with Martin),
review granted, SC18-747, 2018 WL 3147946 (Fla. Jun. 26, 2018);
Hight v. State, 43 Fla. L. Weekly D1800, 2018 WL 3769191 (Fla.
4th DCA Aug. 8, 2018) (agreeing with the Third District in Love).

    Accordingly, based on this Court’s binding decisions in
Commander and Edwards, we reverse and remand for the trial
court to reconsider Boston’s motion for immunity under the Stand
Your Ground statute and the State’s burden of proof under section

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776.032(4), Florida Statutes (2017). Ordinarily, the merits of a
motion to dismiss filed under Florida’s Stand Your Ground law
should be determined before trial at a pretrial evidentiary hearing
because the central purpose of such a motion is for the defendant
to seek immunity from trial. See Dennis v. State, 51 So. 3d 456,
461-64 (Fla. 2010) (holding that where a criminal defendant files a
motion to dismiss pursuant to section 776.032, the trial court
should conduct a pretrial evidentiary hearing and decide the
factual question of the applicability of statutory immunity); see
also Satyanand v. State, 147 So. 3d 662, 663 (Fla. 5th DCA 2014);
Martinez v. State, 44 So. 3d 1219, 1220 (Fla. 1st DCA 2010);
Peterson v. State, 983 So. 2d 27, 29 (Fla. 1st DCA 2008).
Proceeding to trial before determining whether the defendant is
entitled to immunity frustrates the purpose of the immunity
provided for in the statute. However, here the parties stipulated
that the trial court need not conduct the immunity hearing before
trial, but could instead consider Boston’s motion for immunity at
trial. For this reason, on remand the trial court may rely on the
evidence adduced at trial to determine whether the State met its
burden under section 776.032(4), Florida Statutes (2017), or, in the
alternative, hold a new evidentiary hearing.

    AFFIRMED in part; REVERSED in part and REMANDED.

WOLF and LEWIS, JJ., concur.

                 _____________________________

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


Andy Thomas, Public Defender, and Kasey Lacey, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General; Amit Agarwal, Solicitor
General; Edward M. Wenger, Chief Deputy Solicitor General; and
Christopher J. Baum, Deputy Solicitor General, Tallahassee, for
Appellee.

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