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

• 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: Florida Supreme Court

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,

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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 recognized that no procedure had yet been enacted for deciding claims of immunity under section 776.032(1).

Peterson then filed a petition for a writ of prohibition, challenging the denial of his motion to dismiss. In response, the State argued that the motion should have been considered under rule 3.190(c)(4) and was properly denied because " any factual dispute should defeat a claim of statutory immunity" under that rule. Peterson, 983 So.2d at 28. The First District rejected the State's argument that a motion to dismiss based on section 776.032 immunity must be denied whenever there are disputed material facts. Based upon its conclusion that the Legislature " intended to establish a true immunity and not merely an affirmative defense," the First District outlined a procedure for use in ruling on motions to dismiss pursuant to section 776.032. Id. at 29. The First District explained:

We now hold that when immunity under this law is properly raised by a defendant, the trial court must decide the matter by confronting and weighing only factual disputes. The court may not deny a motion simply because factual disputes exist. Here, the trial court did what was required. Petitioner is not precluded from submitting the matter to the jury as an affirmative defense in his criminal trial.

In the absence of a procedure for handling these matters, we find guidance from the Colorado Supreme Court's decision in People v. Guenther, 740 P.2d 971 (Colo.1987). In that case, the court decided that Colorado's similar immunity statute authorized a trial court to dismiss a criminal prosecution at the pretrial stage and did not merely create an affirmative defense for adjudication at trial. Id. at 976. The court further determined that a defendant raising the immunity would have the burden of establishing

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the factual prerequisites to the immunity claim by a preponderance of the evidence. Id. at 980. The court imposed the same burden of proof as it would in motions for postconviction relief or motions to suppress. Id.

Likewise, we hold that a defendant may raise the question of statutory immunity pretrial and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches. As noted by the trial court, courts have imposed a similar burden for motions challenging the voluntariness of a confession. See, e.g., McDole v. State, 283 So.2d 553, 554 (Fla.1973). We reject any suggestion that the procedure established by rule 3.190(c) should control so as to require denial of a motion whenever a material issue of fact appears.

Peterson, 983 So.2d at 29-30. The First District ultimately denied Peterson's petition for a writ of prohibition, concluding that the trial court did not err in finding that Peterson had failed to establish immunity.

We accepted jurisdiction based on the certified conflict on the question of whether the trial court should conduct a pretrial evidentiary hearing and resolve disputed issues of material fact to rule on a motion to dismiss asserting immunity from criminal prosecution pursuant to section 776.032. On this issue, Dennis contends that this Court should adopt the position taken by the First District in Peterson. He asserts that the trial court erred in summarily denying his motions to dismiss and that the trial court should have conducted an evidentiary hearing on his claim of immunity. The State contends that the trial court correctly found that a claim of...