51 So.3d 456 (Fla. 2010), SC09-941, Dennis v. State

Docket Nº:SC09-941.
Citation:51 So.3d 456, 35 Fla. L. Weekly S 731, 36 Fla. L. Weekly S 18
Opinion Judge:CANADY, C. J.
Party Name:Clarence DENNIS, Petitioner, v. STATE of Florida, Respondent.
Attorney:Barbara J. Wolfe, of The Wolfe Law Firm, West Palm Beach, FL, for Petitioner. Bill McCollum, Attorney General, Tallahassee, FL, Celia Terenzio, Bureau Chief, Diana K. Bock and Melanie Dale Surber, Assistant Attorneys General, West Palm Beach, FL, for Respondent.
Judge Panel:PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.
Case Date:December 16, 2010
Court:Supreme Court of Florida
 
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Page 456

51 So.3d 456 (Fla. 2010)

35 Fla. L. Weekly S 731, 36 Fla. L. Weekly S 18

Clarence DENNIS, Petitioner,

v.

STATE of Florida, Respondent.

No. SC09-941.

Supreme Court of Florida.

December 16, 2010

Page 457

Barbara J. Wolfe, of The Wolfe Law Firm, West Palm Beach, FL, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, FL, Celia Terenzio, Bureau Chief, Diana K. Bock and Melanie Dale Surber,

Page 458

Assistant Attorneys General, West Palm Beach, FL, for Respondent.

CANADY, C. J.

In this case we consider whether a trial court should conduct a pretrial evidentiary hearing and resolve issues of fact when ruling on a motion to dismiss asserting immunity from criminal prosecution pursuant to section 776.032, Florida Statutes (2006), commonly known as the " Stand Your Ground" statute. We have for review the decision of the Fourth District Court of Appeal in Dennis v. State, 17 So.3d 305 (Fla. 4th DCA 2009), which held that the existence of disputed issues of material fact required the denial of Dennis's motions to dismiss. The Fourth District certified that its decision is in direct conflict with the decision of the First District Court of Appeal in Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008), which held that the existence of disputed issues of material fact did not warrant denial of a motion to dismiss asserting immunity under section 776.032. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We conclude that where a criminal defendant files a motion to dismiss on the basis of section 776.032, the trial court should decide the factual question of the applicability of the statutory immunity. Accordingly, we disapprove the Fourth District's reasoning in Dennis and approve the reasoning of Peterson on that issue. However, because we conclude that the trial court's error in denying Dennis a pretrial evidentiary hearing on immunity was harmless, we do not quash the Fourth District's decision affirming Dennis's conviction and sentence.

I. BACKGROUND

Clarence Dennis was charged by information with the attempted first-degree murder of Gloria McBride. The charge arose from an incident of domestic violence in August 2006. Dennis filed two motions to dismiss the information pursuant to section 776.032(1), Florida Statutes (2006), asserting that he was immune from criminal prosecution because his actions were a justified use of force. One motion was designated as being filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) and alleged that there were " no material facts in dispute and the undisputed facts do [not] establish a prima facie case of guilt against the Defendant." The other motion was designated as being filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(3) and asserted that the preponderance of the evidence established that Dennis was entitled to immunity because his use of force was justified. The State filed a traverse and demurrer, asserting that material facts were in dispute.

The trial court denied the rule 3.190(c)(4) motion on the basis that the State asserted with specificity the existence of disputed material facts. After expressing uncertainty about whether it had authority to conduct an evidentiary hearing, the trial court rejected Dennis's request for an evidentiary hearing and summarily denied the rule 3.190(c)(3) motion. The trial court concluded that in enacting section 776.032, the Legislature did not intend to take the question of immunity away from the jury.

Before proceeding to trial, the State amended the information, reducing the charge against Dennis to aggravated battery. During the trial, after the State rested its case, Dennis moved for a judgment of acquittal. The trial court denied Dennis's motion, finding that the State had " proved the charge of aggravated battery and [had] established a prima facie case of guilt against the defendant." After the defense presented its evidence and rested, Dennis renewed his motion for a judgment

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of acquittal. The trial court denied the renewed motion and submitted the case to the jury. When charging the jury, the trial court expressly instructed that an " issue in this case [was] whether the defendant acted in self defense" and gave detailed instructions on when deadly or nondeadly force is legally justified. Ultimately, the jury convicted Dennis of the lesser included offense of felony battery, and the trial court sentenced Dennis to sixty months of imprisonment.

Dennis appealed his conviction and sentence, raising two issues. The Fourth District discussed only one issue in its opinion:

Only one of the issues warrants discussion; that is, whether the trial court erred in denying Dennis's motion to dismiss on his claim of statutory immunity brought under section 776.032, Florida Statutes, because there were disputed issues of material fact. We find no error in the trial court's decision to deny the motion to dismiss. As we recognized in Velasquez v. State, 9 So.3d 22 (Fla. 4th DCA 2009), a motion to dismiss based on statutory immunity is properly denied when there are disputed issues of material fact. Accordingly, we affirm.

Dennis v. State, 17 So.3d 305, 306 (Fla. 4th DCA 2009). The Fourth District denied Dennis's motion for rehearing or clarification but did certify conflict with Peterson.

In Peterson, the State charged the defendant with attempted first-degree murder, and the defendant moved to dismiss the information on the ground that he was immune from criminal prosecution pursuant to section 776.032, Florida Statutes (2006). After conducting an evidentiary hearing, the trial court denied the motion to dismiss on the basis that the defendant had not established immunity " as a matter of fact or law." Peterson, 983 So.2d at 28. The trial court...

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