JOHN C. GRAY, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Gray appeals the trial court's denial of his motion to dismiss an aggravated assault charge based on self-defense immunity under Florida Statute section 776.032. The appellate court affirms the denial, holding that the Peterson procedure governs motions to dismiss raising statutory self-defense immunity claims.
The Peterson v. State procedure sets out the proper method for addressing a motion to dismiss raising section 776.032 immunity. The court affirmed the trial court's denial of Gray's motion to dismiss.
[1] A defendant asserting statutory immunity from prosecution based on self-defense may move to dismiss the charges pursuant to Florida Rule of Criminal Procedure 3.190(c)(4)…
[2] The proper procedure for addressing a motion to dismiss based on statutory immunity from prosecution for self-defense is set forth in Peterson v. …
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Join FLexlaw to unlock all legal intelligence“Consistent with the opinion denying Gray's motion for certification, we agree that Peterson, 983 So.2d 27, sets out the proper procedure for addressing a motion to dismiss which raises section 776.032 immunity.”
Establishes the holding that the Peterson procedure governs self-defense immunity dismissal motions
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGray was charged with aggravated assault with a firearm after allegedly pointing a handgun at the driver of another vehicle and threatening to shoot h…
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John Charles Gray, Jr., appeals the denial of his dispositive motion to dismiss predicated on section 776.032, Florida Statutes (2007). We affirm.
Gray was charged with aggravated assault with a firearm after he allegedly pointed his handgun at the driver of another vehicle and threatened to shoot him. Asserting that he was immune from prosecution because he was acting in self defense, Gray moved to dismiss the charge pursuant to section 776.032 and Florida Rule of Criminal Procedure 3.190(c)(4). The trial court denied these motions and Gray filed a petition for writ of certiorari. This court denied the petition, citing to Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008).
Subsequently, Gray moved to certify the issue as one of great public importance to the supreme court. In addressing the motion, this court recognized the conflict between Peterson and Velasquez v. State, 9 So.3d 22 (Fla. 4th DCA 2009). See Gray v. State, 13 So.3d 114, 115 (Fla. 5th DCA 2009). This court also acknowledged that Gray advocated a different procedure than either Peterson or Velasquez. Specifically, Gray asserted that 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.” Id. This court denied the motion and stated, “[W]e will take it up, if raised, on plenary appeal.” Id. Subsequently, Gray pled nolo contendere and reserved his right to appeal the denial of his motion to dismiss.
Gray now appeals the denial of his motion to dismiss and renews the argument he raised in his petition for writ of certio-rari. Consistent with the opinion denying Gray’s motion for certification, we agree that Peterson, 983 So.2d 27, sets out the proper procedure for addressing a motion to dismiss which raises section 776.032 immunity. This court is not alone in this conclusion. See McDaniel v. State, 24 So.3d 654 (Fla. 2d DCA 2009); State v. Yaqubie, — So.3d - (Fla. 3d DCA 2010). We also point out that the conflict between Velasquez and Peterson has been accepted for review in Dennis v. State, 29 So.3d 290 (Fla.2009) (table), and is pending resolution.
AFFIRMED.
GRIFFIN and ORFINGER, JJ., concur.
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Joseph v. State, 103 So. 3d 227 (Fla. 4th DCA 2012)…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 DCA 2010) (denying a petition for writ of certiorari and expressing doubt as to whether the irreparable harm requirement was met); Darling v. State, 81 So. 3d 574, 577 (Fla. 3d DCA 2012)…
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Bretherick v. State, 135 So. 3d 337 (Fla. 5th DCA 2013)…the reasoning and result reached in Rodgers and Ultreras, I fully concur in certifying the question to the Florida Supreme Court for resolution. . The issues raised in these decisions were not fully formed when the opinion issued in Gray v. State, 42 So. 3d 341 (Fla. 5th DCA 2010). In that case, on direct appeal after conviction, the defendant renewed the issue raised previously on a petition for writ of certiorari in Gray v. State, 13 So. 3d 114 (Fla. 5th DCA 2009). This Court held that the proper procedu…
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Authorities Cited
- Zack Peterson v. State, 983 So. 2d 27 (Fla. 1st DCA 2008)
- Velasquez v. State, 9 So. 3d 22 (Fla. 4th DCA 2009)
- Gray v. State, 13 So. 3d 114 (Fla. 5th DCA 2009)
- McDANIEL v. State, 24 So. 3d 654 (Fla. 2d DCA 2009)