KARDEL K. SNOW

v.

STATE OF FLORIDA

WINOKUR, J.

In this case, we address the persistent issue of protracted delay between the filing of an order in the trial court denying self-defense immunity to a defendant and the filing of a petition for writ of prohibition in this Court meant to challenge that order. We find that the delay involved here was long enough that it serves as an independent basis for denying the petition. But even if we did not deny this petition on this ground, we would deny the petition on the merits because we find no error in the trial court’s order denying Snow’s motion to dismiss.

I

A

Kardel K. Snow was charged with aggravated battery with a firearm causing great bodily harm. Snow filed a motion to dismiss the information, claiming immunity from prosecution under section 776.032(1), Florida Statutes. Following an evidentiary hearing, the trial court denied Snow’s motion by order rendered August 13, 2021.

On January 11, 2022, Snow filed this petition for writ of prohibition in this Court as an “emergency.” As of that date, Snow’s jury trial was scheduled for January 24. On January 13, we issued a show cause order to the State, automatically staying all proceedings below. See Fla. R. App. P. 9.100(h). But because we were concerned that Snow’s petition seeks review of an order rendered five months earlier, we also directed the parties to address the effect of Snow’s delay in filing the prohibition petition, citing Carr v. Miner, 375 So. 2d 64, 65 (Fla. 1st DCA 1979), which initially denied an emergency prohibition petition filed six weeks after rendition of the order under review but only three days before trial. See also Lewis v. State, 251 So. 3d 310, 311 (Fla. 2d DCA 2018) (commenting on three-month delay in filing a prohibition petition seeking self-defense immunity, noting potential for abuse of judicial process).

In its response, the State noted that the five-month delay in filing the prohibition petition was far greater than the delay at issue in Carr (six weeks) and Lewis (three months). The State also noted that Snow’s five-month delay shows a possible lack of diligence and causes possible prejudice to the State, and recounted the possible difficulties resulting from late-filed self-defense immunity prohibition petitions identified by the court in Lewis.

In reply, Snow noted that he retained counsel specifically to file this petition and described delay in obtaining a transcript of the hearing. Snow hired counsel for this petition on September 14, 2021, and was finally able to obtain the transcript on November 16. Snow argued that there was no inordinate delay because prohibition is the functional equivalent of an appeal from a motion to dismiss and asserts that the timeline here generally follows the timeline for appeals.

Snow also argued that he did not engage in last-minute surprise filings like those causing concern in Carr and Lewis. Unlike those cases, the trial in this case did not have to be cancelled at the last minute, and there was no “significant hardship on the parties, witnesses, and the trial court.” Lewis, 251 So. 3d at 311. Instead, Snow argues that he filed a notice of appearance within thirty days, explicitly placing all parties on notice that a prohibition petition would be filed. And the subsequent delay was due to obtaining the funds for transcription and then waiting on transcription. Thus, Snow’s counsel argues that the delay was reasonable and not inordinate. And he states that, had there been additional timing rules, he certainly would have abided by them.

B

Section 776.032, Florida Statutes, provides that a person using force in self-defense, as permitted in other statutes, “is immune from criminal prosecution and civil action for the use of such force.”¹ A defendant may file a motion to dismiss the information on this ground, and the court must conduct a pretrial evidentiary hearing on it. Dennis v. State, 51 So. 3d 456 (Fla. 2010). This court has held explicitly that the proper vehicle to challenge denial of a motion to dismiss based on self-defense immunity is a petition for writ of prohibition in the district court of appeal. Rice v. State, 90 So. 3d 929, 930 (Fla. 1st DCA 2012). Other district courts of appeal have likewise ruled that a petition for writ of prohibition should be used to challenge an order denying self-defense immunity. Mocio v. State, 98 So. 3d 601, 603 (Fla. 2d DCA 2012); Mobley v. State, 132 So. 3d 1160, 1161 (Fla. 3d DCA 2014); Joseph v. State, 103 So. 3d 227 (Fla. 4th DCA 2012); Bretherick v. State, 135 So. 3d 337, 339 (Fla. 5th DCA 2013), approved, 170 So. 3d 766 (Fla. 2015).

Before proceeding further, we discuss the various methods available to review pretrial orders. A writ of certiorari may be sought for review of pretrial orders. See Fla. R. App. P. 9.030(b)(2)(A). A petition for writ of certiorari must be filed within thirty days of rendition of the order to be reviewed. Fla. R. App. P. 9.100(c)(1). Similarly, district courts of appeal may review certain specified orders by interlocutory appeal. See Fla. R. App. P. 9.130. This includes orders denying several types of immunity from suit. See Fla. R. App. P. 9.130(a)(3)(C)(v), (a)(3)(F) (permitting review of orders denying workers’ compensation immunity, absolute or qualified immunity, immunity under section 768.28(9), Florida Statutes, and sovereign immunity). A notice of this type of appeal must be filed within thirty days of rendition of the order to be reviewed, and the initial brief must be filed within fifteen days after the notice of appeal. Fla. R. App. P. 9.130(b), (e). In short, both petitions for writ of certiorari and interlocutory appeals are used to review certain pretrial orders, and both require a brief or petition from the challenger within at most forty-five days following the order to be reviewed.

But as stated, district courts have ruled that a petition for writ of prohibition is the proper method to review an order denying self-defense immunity. This view seems problematic because prohibition is an extraordinary writ “by which a superior court, having appellate and supervisory jurisdiction over an inferior court . . . may prevent such inferior court or tribunal from exceeding jurisdiction or usurping jurisdiction over matters not within its jurisdiction.” English v. McCrary, 348 So. 2d 293, 296 (Fla. 1977). The writ is “preventive and not corrective.” Id. at 296-97. “It issues only to prevent the commission of an act, and is not an appropriate remedy to revoke an order already issued.” State ex rel. Harris v. McCauley, 297 So. 2d 825, 828 (Fla. 1974). In other words, by its nature prohibition is not a vehicle to seek review of a specific order, but to prevent improper exercise of jurisdiction.² See

Most of the cases cited above holding that prohibition is proper to review self-defense immunity claims cite Tsavaris v. Scruggs, 360 So. 2d 745 (Fla. 1977), to support that holding. Tsavaris holds that a refusal to recognize immunity means “the further action of that court in prosecuting the cause would amount to an excess of jurisdiction which then would be subject to restraint by prohibition.” Id. at 747. This rule seems to conflict with the Supreme Court’s decisions regarding civil immunity from suit, which explicitly state that prohibition is not appropriate to review the denial of immunity. See Citizens Prop. Ins. Corp. v. San Perdido Ass’n, Inc., 104 So. 3d 344, 349–51 (Fla. 2012); Mandico v. Taos Constr., Inc., 605 So. 2d 850, 853–54 (Fla. 1992). To the extent that interlocutory appeal is not available for this review, these and other cases note that certiorari is appropriate to review denial of immunity claims. See, e.g., Fuller v. Truncale, 50 So. 3d 25, 27–28 (Fla. 1st DCA 2010) (explaining that judicial immunity should be reviewed through the district court’s certiorari jurisdiction); Qadri v. Rivera-Mercado, 303 So. 3d 250, 257 (Fla. 5th DCA 2020) (“Prosecutorial immunity from suit rests on the same footing as the immunity conferred upon judges and grand juries.”); James v. Leigh, 145 So. 3d 1006, 1007–08 (Fla. 1st DCA 2014) (explaining that certiorari review is proper when a trial court denies a motion to dismiss based on absolute litigation immunity).3 The Florida excess of its power while certiorari is to remedy the consequent evils of such action.”), cert. discharged, 300 So. 2d 257 (Fla. 1974). 3 As stated above, orders denying some types of immunity from suit are now reviewable by interlocutory appeal. Cases permitting certiorari review of such orders predate the amendments to the rules of appellate procedure that permit interlocutory appeal. See In re Amends. to Fla. Rule of App. Proc. 9.130, 151 So. 3d 1217 (Fla. 2014); Amends. to the Fla. Rules of App. Proc., 696 So. 2d 1103 (Fla. 1996); In re Amends. to Fla. Rules of App. Proc., 609 So. 2d 516, 517 (Fla. 1992).

Supreme Court has never explained why prohibition is available to “review” orders denying immunity from criminal prosecution but not available to address immunity from suit.⁴

But regardless of the propriety of the use of prohibition to challenge orders denying self-defense immunity, existing case law compels this practice. Accordingly, we then turn to the correctness of the petition itself.

C

One of the practical differences between certiorari and prohibition manifests itself in this case. As stated above, a petition for writ of certiorari (as well as a notice of interlocutory appeal) must be filed within thirty days of rendition of the order to be reviewed. Because prohibition is not intended to review an order, the rules of procedure impose no deadline for petitioning for writ of prohibition that is based on the filing of some order. As such, a defendant may conclude that he is free to seek review of an order denying self-defense immunity nearly five months after the order was filed, as Snow did here.

While the rules of procedure set no deadline for a prohibition petition, Florida courts have long held that a petition for writ of prohibition, given its discretionary nature, may be denied if it has been unreasonably delayed. For example, in Carr, this Court initially denied a prohibition petition seeking review of an order denying a speedy-trial discharge because the filing of the petition, on its face, appeared to be unreasonably delayed, a factor that “influenced against intervention.” 375 So. 2d at 65. In that case,

the petition was filed six weeks after the order denying discharge was rendered and only three days before trial was set to begin. Id.5

Carr has been relied on in cases where the petitioner delayed filing a prohibition petition to challenge an order denying a motion to disqualify the lower court judge and has been cited in support of the general “timeliness rule” in such cases, which holds that a petitioner must act “as soon as practicable.” Jackson v. Leon Cnty. Elections Canvassing Bd., 214 So. 3d 705, 706 (Fla. 1st DCA 2016) (quoting People Against Tax Revenue Mismanagement, Inc. v. Reynolds, 571 So. 2d 493, 496 (Fla. 1st DCA 1990)).

More recently, in Lewis, the Second District expressed concern about the lack of any time limitation for a prohibition petition challenging an order denying self-defense immunity. The defendant in Lewis waited more than a month after the trial court denied the self-defense immunity motion to file a prohibition petition, only four days before trial was set to begin. 251 So. 3d at 311. This motivated the Second District to address potential abuse of the automatic stay that accompanies prohibition petitions:

Here, the absence of a procedural process or, at a minimum, a jurisdictional timeframe for filing the petition for writ of prohibition resulted in the delay—at the last moment—of a first-degree murder trial. The last minute trial cancellation undoubtedly caused a significant hardship on the parties, witnesses, and the trial court. The fact that neither the Florida Rules of Criminal Procedure nor the Florida Rules of Appellate Procedure address the timing of [self-defense immunity] motions to dismiss or petitions for writ of prohibition means that there is the potential for abuse by virtue of a defendant seeking what amounts to a last minute continuance.

Id. The Second District encouraged the Florida Bar Appellate and Criminal Rules Committees to consider adding a timeframe for filing a prohibition petition. Id. The Appellate Court Rules Committee chose not to recommend establishing a deadline for prohibition petitions reviewing orders denying self-defense immunity, in part because district courts already possess inherent authority to deny prohibition petitions that are unreasonably delayed. See App. Ct. Rules Comm., minutes of meeting at 14 (Oct. 18, 2019).6

The Florida courts have “inherent powers to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction, subject to, or not in conflict with, valid existing laws and constitutional provisions.” Jimenez v. Bondi, 259 So. 3d 722, 725 (Fla. 2018) (quoting State ex rel. Davis v. City of Avon Park, 117 Fla. 565, 158 So. 159, 164 (1934)). This inherent authority includes the authority to prevent an abuse of process. See, e.g., Ardis v. Ardis, 130 So. 3d 791, 793 (Fla. 1st DCA 2014).

In this case, Snow’s counsel waited thirty-one days to file his “limited appearance” for the purpose of filing a prohibition petition. Even though three months had already passed since the court denied his motion to dismiss by the time he obtained a transcript, Snow took two additional months to file this petition— as an “emergency” no less. Under these circumstances, we find that the filing of this petition was unreasonably delayed and deny the petition on this basis.⁷

We reject Snow’s argument that he essentially followed the same timeframes for filing an appeal. If Snow had been permitted to file an interlocutory appeal of the order denying immunity, he would have been required to file a notice of appeal within thirty days of the order and an initial brief within fifteen days of the notice, for a total timeline of forty-five days at most. See Fla. R. App. P. 9.130(b), (e). Moreover, the record on appeal need not be transmitted to the district court for interlocutory appeals. Fla. R. App. P. 9.130(d). Instead, the appellant must provide all relevant documents in an appendix to the brief, including any transcripts. Fla. R. App. P. 9.130(e). This timeline is not essentially the same as the five months taken in this case.8

Again, even if we were to ignore the two months that it took Snow to obtain a transcript of the hearing, we cannot ignore the remaining time it took him to file the prohibition petition. Given the short timeframes that attend review of pretrial orders, we cannot say that this petition was filed as soon as practicable. To prevent the issues identified by the Second District in Lewis, delays in criminal cases should be minimized. In particular, we expect defendants seeking review of orders denying self-defense immunity to make every effort to act expeditiously.

Accordingly, we hold that the delay between the order denying immunity and the filing of this petition constitutes a sufficient basis to deny the petition. In doing so, we recognize Snow’s contention that he would have abided by any time limitations set forth in the rules, especially in light of his claim that the State did not object to his continuance requests. Moreover, we have found no case law denying a prohibition petition to review a self-defense immunity order on the basis that the petitioner did not act as soon as practicable. For this reason, we also hold specifically that we would deny Snow’s petition even if it had not been unreasonably delayed.

II

“A trial court’s denial of pre-trial self-defense immunity involves a mixed standard of review.” Fletcher v. State, 273 So. 3d 1187, 1189 (Fla. 1st DCA 2019). “The trial court’s factual findings must be supported by competent substantial evidence. Legal conclusions, however, are reviewed de novo.” Id. (citation omitted).

“In determining whether the trial court’s findings of fact are supported by competent, substantial evidence, we must not ‘reweigh the evidence and substitute our judgment for that of the trial court.’” Morris v. State, 325 So. 3d 1009, 1011–12 (Fla. 1st DCA 2021) (quoting Edwards v. State, 257 So. 3d 586, 588 (Fla. 1st DCA 2018)). “[T]he trial court’s decision is ‘clothed with a presumption of correctness, and the [appellate] court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.’” Early v. State, 223 So. 3d 1023, 1025 (Fla. 1st DCA 2017) (quoting Viera v. State, 163 So. 3d 602, 604 (Fla. 3d DCA 2015)).

In his petition, Snow primarily complains that the trial court’s written order contains no factual findings, nor sets forth the trial court’s rationale for denying his motion to dismiss. However, “there is no requirement that the trial court make express findings of fact in an order denying a motion to dismiss pursuant to section 776.032.” See Lewis, 251 So. 3d at 311. Further, factual findings and credibility determinations may be implied from the trial court’s ultimate ruling. See State v. Dorsey, 991 So. 2d 393, 394 (Fla. 1st DCA 2008) (“A reviewing court is bound by the trial court’s findings of fact—even if only implicit—made after a suppression hearing, unless they are clearly erroneous.” (quoting State v. Setzler, 667 So. 2d 343, 346 (Fla. 1st DCA 1995))).

In this case, by ruling against Snow, the trial court implicitly resolved conflicts in favor of the State’s theory, which is supported by competent, substantial evidence. Viewed in a light most favorable to affirming the trial court’s ruling and implicit findings, the State’s evidence shows that Snow and the victim, Courtney Fairley, engaged in a fight after Fairley disciplined Snow’s child without his permission. According to Fairley and the child’s mother, Zhana Parker, Snow called to confront them about the reported discipline because he felt disrespected. Later that weekend, Fairley, Parker, and Snow met to exchange custody of the children when Snow used language that indicated an invitation to fight. Fairley stepped out of the vehicle when Snow blindsided him with a punch. The two men tussled and, eventually, Fairley put Snow on the ground on his back. As Snow started to get up, he pulled the firearm out of his pocket and shot Fairley once in the chest.

Snow and Parker each called 911 and the responding deputy recorded his interviews with Snow, Fairley, and Parker with his vehicle dash camera. During the 911 call and vehicle recordings, Snow claimed that he had to shoot Fairley because Fairley blindsided him with a punch then pinned him down with his back to the ground, putting him in fear of his life. Contrary to Snow’s testimony at the hearing, at no time did Snow tell the deputy or the 911 dispatcher that Fairley was choking him before he pulled the trigger. Additionally, Parker and the deputy testified that they did not see any injuries to Snow’s face or neck, only on his hands.

Thus, the deputy arrested Snow because it appeared that Snow shot Fairley because Fairley was beating him in the fight.

Under these facts, we find no error in the trial court’s conclusion that Snow was not entitled to immunity from prosecution. Florida law “confers immunity from prosecution if an individual uses deadly force in accordance with section 776.012(2), Florida Statutes.” Fletcher, 273 So. 3d at 1189 (citing § 776.032(1), Fla. Stat.). “Section 776.012(2), allows an individual to use or threaten to use deadly force ‘if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.’” Id. (quoting § 776.012(2), Fla. Stat.). “An individual has no duty to retreat and ‘has the right to stand his or her ground,’ but only ‘if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.’” Id.

Here, regardless of whether Snow was engaged in criminal activity at the time he shot Fairley, the State’s evidence establishes that Snow was either the initial aggressor who had a duty to retreat, see § 776.041(2), Fla. Stat.,⁹ or that he did not have a reasonable belief that shooting Fairley was “necessary to prevent imminent death or great bodily harm to himself,” § 776.012(2), Fla. Stat. Thus, we find no error in the trial court’s decision not to find Snow immune from prosecution.

Snow suggests that the trial court could not resolve conflicts in favor of the State because he presented competent, substantial evidence of his conflicting version of events. He testified at the hearing that Fairley was the initial aggressor who blindsided him,

III

Accordingly, we deny this petition because it was not filed as soon as practicable after the trial court denied Snow’s motion to dismiss. But even if we did not deny this petition on this ground, because we find no error in the trial court’s order denying Snow’s motion to dismiss, we would also deny the petition on the merits.

LONG, J., concurs; MAKAR, J., concurs on the merits, dissents as to dismissal for untimeliness with opinion.