135 So.3d 337 (Fla.App.5 Dist. 2013), 5D12-3840, Bretherick v. State

Docket Nº:5D12-3840
Citation:135 So.3d 337, 38 Fla. L. Weekly D 2276
Opinion Judge:PER CURIAM.
Party Name:JARED BRETHERICK, Appellant, v. STATE OF FLORIDA, Appellee
Attorney:Eric J. Friday, of Fletcher & Phillips, Jacksonville, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.
Judge Panel:SAWAYA and EVANDER, JJ., concur. SCHUMANN, B.B., Associate Judge, concurs and concurs specially, with opinion. SAWAYA and EVANDER, JJ., concur. SCHUMANN, B.B., Associate Judge, concurs and concurs specially, with opinion. SCHUMANN, B.B., Associate Judge, concurring specially.
Case Date:November 01, 2013
Court:Florida Court of Appeals, Fifth District
 
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Page 337

135 So.3d 337 (Fla.App.5 Dist. 2013)

38 Fla. L. Weekly D 2276

JARED BRETHERICK, Appellant,

v.

STATE OF FLORIDA, Appellee

No. 5D12-3840

Florida Court of Appeal, Fifth District

November 1, 2013

Appeal from the Circuit Court for Osceola County, Scott Polodna, Judge.

Eric J. Friday, of Fletcher & Phillips, Jacksonville, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.

SAWAYA and EVANDER, JJ., concur. SCHUMANN, B.B., Associate Judge, concurs and concurs specially, with opinion.

OPINION

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PER CURIAM.

Perceiving a threat from another driver completely stopped in the lane ahead of him on a busy highway, Jared Bretherick [" the Defendant" ] pointed a firearm at the driver and held him at gunpoint. As a result of this action, he was charged with aggravated assault. After an evidentiary hearing, the trial court denied his pretrial motion to dismiss based on Florida's self-defense immunity statute, commonly called the " Stand Your Ground" law. The issues in this case are, first, whether the Defendant has the right of review before trial of the denial of his motion by petition for writ of prohibition; second, whether the burden of proof at the evidentiary hearing on the motion to dismiss was properly placed on the Defendant to prove entitlement to immunity; and finally, assuming the Defendant bears the burden of production and persuasion, whether that burden was met in this case.

The standard of review requires that the trial court's findings of fact must be supported by competent, substantial evidence, while the conclusions of law are subject to de novo review. Mederos v. State, 102 So.3d 7, 11 (Fla. 1st DCA 2012). Although there was some conflicting testimony presented below, the trial court made specific findings of fact based on credibility determinations that establish the following facts in this case.

On December 29, 2011, the Bretherick family was on vacation in Central Florida, driving toward Downtown Disney, on a

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heavily travelled, six-lane divided road in Osceola County. Ronald Bretherick, the father, was driving in the middle lane westbound when, in his rearview mirror, he saw a blue truck rapidly approaching them. The truck almost side-swiped them as it passed in the right lane. As the truck passed the Brethericks, the driver, Derek Dunning, " stared at them in a threatening manner," but made no statements or gestures.

Dunning's truck cut in front of the Bretherick vehicle in the middle lane, slammed on the brakes, and came to a complete stop. There was no traffic or other impediment that required this action. Ronald Bretherick also stopped his vehicle, one to two car lengths behind Dunning's truck. Dunning got out of his truck and walked toward the Bretherick vehicle. He was unarmed. Without exiting, Ronald Bretherick held up a holstered handgun, and Dunning returned to his truck without uttering a word.

After Dunning got back into his truck, the Defendant, Ronald's adult son, got out of the rear passenger's seat. He approached the driver's side of Dunning's truck within a few feet of the driver, while pointing the handgun at Dunning. The Defendant told Dunning to move his truck or he would be shot. Dunning misunderstood, and believed that the Defendant told him that if he moved, he would be shot. This slight but critical misunderstanding explains everyone's subsequent actions.

The Defendant returned to his own vehicle and took up various positions, continuing to point the gun at Dunning. The Brethericks, Dunning, and several passersby all called 911. The Defendant's mother and sister exited their vehicle and took refuge in a ditch on the north side of the road. The Defendant told his family that Dunning said he had a gun, but no one saw Dunning with a weapon, and the trial court found this not to be credible. At some point, Dunning's truck rolled back twelve to eighteen inches toward the Brethericks' vehicle. The police arrived and diffused the volatile encounter.

As a result of this incident, the Defendant was charged with one count of aggravated assault with a firearm in violation of sections 784.021(1)(a) and 775.087(2), Florida Statutes (2011). On April 3, 2012, the Defendant filed a motion to dismiss, alleging immunity from prosecution, pursuant to section 776.032, Florida Statutes (2011). After an evidentiary hearing, the trial court denied the motion to dismiss, and the Defendant sought review.

A threshold issue is whether the denial of this pretrial motion is subject to review at this time. The First, Second, and Fourth District Courts of Appeal have held that a petition for writ of prohibition is the appropriate method for obtaining review before trial of the denial of a motion to dismiss under the self-defense immunity statute. See Little v. State, 111 So.3d 214, 216 (Fla. 2d DCA 2013); Mederos, 102 So.3d 7; Joseph v. State, 103 So.3d 227 (Fla. 4th DCA 2012). Non-final orders in criminal cases that challenge the authority of the trial court's jurisdiction are traditionally subject to review by petition for writ of prohibition. In Joseph, the Fourth District determined that a writ of prohibition was the appropriate method for obtaining immediate review of a trial court's denial of a claim of self-defense immunity based on the Florida Supreme Court's decision in Tsavaris v. Scruggs, 360 So.2d 745 (Fla. 1977), which employed this remedy to review the denial of a pretrial claim of immunity from prosecution. In light of the decisions in the First, Second and Fourth District Courts, we agree that the appropriate vehicle to obtain review before trial of the denial of a " Stand Your Ground" motion invoking self-defense

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