BARTHOLOMEW

v.

STATE OF FLORIDA

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

No. 1D2022-2638

GLYNN BARTHOLOMEW, JR.,

Petitioner,

v. STATE OF FLORIDA,

Respondent.

Petition for Writ of Prohibition—Original Proceeding.

May 7, 2025

PER CURIAM.

DENIED.

ROBERTS and LONG, JJ., concur; TANENBAUM, J., concurs with an opinion.

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

TANENBAUM, J., concurring.

2 The State alleges that the petitioner committed second-degree murder and possessed a firearm as a convicted felon. The charges stem from the petitioner’s admission to firing a single round at a victim, fatally wounding him while he stood at the front door of a house the two men frequented. The petitioner asks that we prohibit the trial court from allowing the prosecution to continue because he is entitled to self-defense immunity under section 776.032, Florida Statutes—or so he claims. Though we ordered the State to show cause why relief should not be granted, I agree with denying the petitioner the extraordinary relief he seeks. The record before us does not just fail to demonstrate a clear case that he is entitled to immunity; it affirmatively demonstrates a clear case that he is not. The petitioner initiated his immunity claim by filing an unsworn motion to dismiss. But cf. Fla. R. Crim. P. 3.190(c)(4) (requiring that “facts on which the motion [to dismiss] is based should be alleged specifically and the motion sworn to”).

The motion nevertheless enumerated alleged facts the petitioner contended supported entitlement to immunity. The State and the petitioner went back and forth over whether the petitioner had to establish a prima facie case first, before the State went forward to rebut the claim with clear and convincing evidence. See § 776.032(4), Fla. Stat. Still, the State proceeded with its witnesses and documentary evidence, and the petitioner afterward called his own witnesses. The order-of-presentation procedural question is not something to be addressed in the context of this extraordinary writ proceeding. Instead, all the record evidence is considered to determine whether there was any material fact dispute pertaining to the immunity claim—the trial court’s resolution of any such dispute being “conclusive.” Sherrod v. Franza, 427 So. 2d 161, 164 (Fla. 1983).

Though the petitioner did not testify or present a sworn statement, the State presented evidence of his statements to a detective during a recorded interview, statements on which the trial court heavily relied when denying the motion. The petitioner explained to the detective that he had been permitted by the property owner to stay in a shed behind the house where the shooting occurred; there was no mention of a lease or any other property interest held by the petitioner. 3 The petitioner explained he was in the backyard when the victim asked him to come inside the house and help the victim look for his missing drugs. The petitioner saw several individuals in the house passed out, high on drugs; and soon, the victim began beating the petitioner with a hammer, accusing him of being the drug thief. The attack took place at a couch, and the petitioner, knowing there was a gun in the couch, grabbed the firearm and concealed it on his person. When the attack subsided, the victim told the petitioner to strip his clothes off to prove he did not have the drugs. Instead, the petitioner left the house using one of two front doors. The victim initially followed but went back inside when the petitioner revealed the gun he was carrying. As the petitioner continued walking outside in front of the house, the victim went to the other front door and opened it. The petitioner, seeing the victim open the second door, once again pulled out the concealed firearm. The victim started to close the door when the petitioner fired once. Other evidence presented by the State showed that the single round penetrated the door, hit the victim in his side under his arm, and seriously damaged both lungs and the liver. The victim died, likely within five minutes. The petitioner called a forensic pathologist, who testified that at some point, the petitioner had received non-self-inflicted wounds, thereby suggesting the wounds may have come from the victim’s hammer. Two other witnesses called by the petitioner did not present evidence that carried weight with the trial court—if the evidence were relevant at all: a neighbor from across the street saying she heard some commotion and an exclamation at the time of the incident; and a friend testifying he had seen the victim brandish a firearm in the petitioner’s presence several months earlier. To get the benefit of self-defense immunity when deadly force has been used, the petitioner had to have “reasonably believe[d] that using . . . such force [was] necessary to prevent imminent death or great bodily harm to himself . . . or to prevent the imminent commission of a forcible felony.” § 776.012(2), Fla. Stat.; see § 776.032(1), Fla. Stat. (providing for immunity from prosecution when force is used as permitted under section 776.012, among other provisions).

On the undisputed facts presented— showing that the petitioner fired from outside the house at the

4 victim standing inside the house, through a closing door—I can say without hesitation there could have been no reasonable belief that firing the gun was necessary. That the victim had just hit the petitioner on the head does not affect the calculus on this. The circumstances leading up to the fateful moment and how those circumstances affected the petitioner’s state of mind are for the jury to consider as part of his trial defense.

Additionally, I note that, on these facts, the petitioner did not have “the right to stand his [] ground” because he did not have “a right to be” where he was—on someone else’s property. § 776.012(2), Fla. Stat. (emphasis supplied).

The only evidence in the record indicated the owner merely invited the petitioner to stay on property, so the petitioner had a license—meaning that while the petitioner legally could be on the privately owned property as an invitee, he did not have an enforceable right to be or remain there. Cf. Seaboard Air Line Ry. Co. v. Dorsey, 149 So. 759, 761 (Fla. 1932) (noting how a “license is a mere permit to use the property of another,” not “an interest in the property used,” like an easement; and how a “license may generally be revoked at the pleasure of the grantor, no matter how long continued”); Walling Enters., Inc. v. Mathias, 636 So. 2d 1294, 1296 (Fla. 1994) (observing how older cases “hold that a license or permit constitutes a special privilege, rather than a property right” (internal quotation and citation omitted)).

The petitioner had “a duty to retreat”—at least to a location where he had a right to be, like a public sidewalk or thoroughfare— a retreat he seemingly started but then cut short to face the victim. The petitioner should have kept walking away. Had the victim continued after him once the petitioner made his way to the street—and then the petitioner turned and fired—there might have been a clearer case for immunity. But those are not the facts here. The petitioner fails to demonstrate an entitlement to extraordinary relief in prohibition.

5 Bruce A. Miller, Public Defender, Shachar Dov Spiegel, Assistant Public Defender, Pensacola, for Petitioner. James Uthmeier, Attorney General, Robert C. Lee, Assistant Attorney General, Tallahassee, for Respondent.