JOHN CHARLES GRAY, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Fifth District Court of Appeal addresses a motion to certify a question of great public importance regarding the proper procedure, burden of proof allocation, and standard of proof for determining self-defense immunity claims under Florida's 'stand your ground' law (§ 776.032). The court declines to certify the question but acknowledges the need for eventual Supreme Court resolution given conflicting decisions among district courts.
The Fifth District adopted the procedure described in Peterson v. State, requiring an evidentiary proceeding with the defendant bearing the burden of proving immunity by a preponderance of the evidence. The court declined to certify the question at this time but acknowledged that the differing views among district courts (Peterson, Velasquez, and Dennis) will likely require a definitive answer from the Florida Supreme Court.
[1] A claim of statutory immunity from prosecution is determined by the court after an evidentiary proceeding.
[2] In a proceeding to determine statutory immunity from prosecution, the criminal defendant bears the burden of proof.
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Join FLexlaw to unlock all legal intelligence“In determining a defendant's motion to dismiss on the grounds of immunity from prosecution under § 776.032 Florida Statutes, what is the procedure the trial court must follow, what is the correct allocation of the burden of proof, and what standard of proof must a party meet in order to carry the burden allocated to him or her?”
The certified question of great public importance posed by the defendant regarding the proper procedure for 'stand your ground' immunity claims.
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Join FLexlaw to unlock all legal intelligenceDefendant Gray moved to dismiss on grounds of immunity from prosecution under § 776.032, Florida Statutes. The trial court conducted both a Peterson-t…
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ON MOTION FOR CERTIFICATION
After having denied the petition for writ of certiorari, we now have this case on a Motion for Certification of a Question of Great Public Importance, to wit:
In determining a defendant’s motion to dismiss on the grounds of immunity *115from prosecution under § 776.032 Florida Statutes, what is the procedure the trial court must follow, what is the correct allocation of the burden of proof, and what standard of proof must a party meet in order to carry the burden allocated to him or her?
The question arises in light of two recent decisions by our sister courts. In Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008), the First District Court of Appeal concluded that the right to immunity from criminal prosecution afforded in section 776.031(1), Florida Statutes (2007) (commonly known as the “stand your ground” law) is to be determined by the court after an evidentiary proceeding in which the criminal defendant has the burden of proof by a preponderance of the evidence. Recently, the Fourth District has disagreed with the First District in Velasquez v. State, 9 So.3d 22 (Fla. 4th DCA 2009).1 In Velasquez, the panel majority ruled that Florida Rule of Criminal Procedure 3.190(c)(4) is the proper device for testing this immunity and that whenever the State traverses and properly disputes the facts contained in the defense motion, the motion must be denied and the issue determined at trial.
In this proceeding, Defendant has taken a view different from that of both courts. Defendant urges that because the burden remains with the State to prove its case, including the absence of self-defense, the proper approach is to have the court make the determination at a proceeding much like the one Peterson requires, except that the burden at such a proceeding would be on the State to establish that Defendant is not entitled to immunity.
In our prior opinion, which was issued virtually simultaneously with Velasquez, we adopted the procedure described in Peterson. Now, with the benefit of Velasquez, we see no reason to alter our opinion. In the case before us, the trial court conducted both a Peterson-type hearing, as well as a rule 3.190(c)(4) hearing, and denied Defendant’s claim of immunity in both. The court explained that Defendant did not meet his burden of establishing his claim of immunity by a preponderance of the evidence.
We elect not to certify the question posed at this time, although it appears from the number of cases already resulting in opinions and the differing views expressed about how the new statutory immunity should be determined, that this is a question that eventually will require a definitive answer from our high court. In this case, we will take it up, if raised, on plenary appeal. Accordingly, the Motion to Certify is denied.
MOTION DENIED.
SAWAYA and MONACO, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Bretherick v. State, 170 So. 3d 766 (Fla. 2015)…the defendant has the burden to prove entitlement to Stand Your Ground immunity by a preponderance of the evidence. See McDaniel v. State, 24 So. 3d 654, 656 (Fla. 2d DCA 2009); State v. Yaqubie, 51 So. 3d 474, 475 (Fla. 3d DCA 2010); Gray v. State, 13 So. 3d 114, 115 (Fla. 5th DCA 2009). We now agree with all of the district courts and hold that the defendant bears the burden of proof, by a preponderance of the evidence, to demonstrate entitlement to Stand Your Ground immunity at the pretrial evidentiary h…
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Joseph v. State, 103 So. 3d 227 (Fla. 4th DCA 2012)…ibition is available to review before trial the denial of a motion to dismiss claiming self-defense immunity from prosecution. Hair v. State, 17 So. 3d 804 (Fla. 1st DCA 2009); Mocio v. State, 98 So. 3d 601 (Fla. 2d DCA 2012). But see Gray v. State, 13 So. 3d 114, 115 (Fla. 5th DCA 2009) (declining to review the issue by certiorari without prejudice to raise the claim on direct appeal), affirmed on subsequent appeal, Gray v. State, 42 So. 3d 341 (Fla. 5th DCA 2010); Montanez v. State, 24 So. 3d 799 (Fla. 2d…
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State v. Nadim Yaqubie, 51 So. 3d 474 (Fla. 3d DCA 2010)…‘We agree with the First District — that our legislature intended to create immunity from prosecution rather than an affirmative defense and, therefore, the preponderance of the evidence standard applies to immunity determinations.”); Gray v. State, 13 So. 3d 114, 115 (Fla. 5th DCA 2009) (“In our prior opinion, which was issued virtually simultaneously with Velasquez, we adopted the procedure described in Peterson. Now, with the benefit of Velasquez, we see no reason to alter our opinion.”). The petition for…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Zack Peterson v. State, 983 So. 2d 27 (Fla. 1st DCA 2008)
- Velasquez v. State, 9 So. 3d 22 (Fla. 4th DCA 2009)