983 So.2d 27 (Fla.App. 1 Dist. 2008), 1D07-3943, Peterson v. State

Docket Nº:1D07-3943.
Citation:983 So.2d 27, 33 Fla. L. Weekly D 1104
Party Name:Zack PETERSON, Petitioner, v. STATE of Florida, Respondent.
Case Date:April 23, 2008
Court:Florida Court of Appeals, First District
 
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Page 27

983 So.2d 27 (Fla.App. 1 Dist. 2008)

33 Fla. L. Weekly D 1104

Zack PETERSON, Petitioner,

v.

STATE of Florida, Respondent.

No. 1D07-3943.

Florida Court of Appeal, First District.

April 23, 2008

Rehearing Denied June 9, 2008.

Page 28

Anabelle Dias of Anabelle Dias Associates, P.A., Tallahassee, for Petitioner.

Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Respondent.

KAHN, J.

Petitioner seeks a writ of prohibition to review an order denying his motion to dismiss based on the statutory immunity established by section 776.032(1), Florida Statutes (2006). We deny the petition and hold that a criminal defendant claiming protection under the statute must demonstrate by a preponderance of the evidence that he or she is immunized from prosecution. Here, the trial court applied the correct standard.

The State charged petitioner with one count of attempted first-degree murder, alleging that petitioner shot his brother with a firearm. Petitioner moved to dismiss the information on the ground that he was immune from criminal prosecution pursuant to section 776.032, Florida Statutes (2006), because the shooting occurred when petitioner's brother assaulted him after having been asked to leave petitioner's home.

The trial court conducted a hearing at which the parties did not present live evidence but, instead, presented the deposition of an eyewitness-petitioner's and the victim's sister-as well as the deposition of the alleged victim. After consideration of the evidence and the arguments, the trial court entered an order denying petitioner's motion to dismiss. The trial court correctly observed that no rule or procedure had yet been enacted to guide trial courts in deciding a claim of immunity brought under section 776.032(1). The court nevertheless proceeded to recognize its role as finder of fact at this stage of the proceedings, “much in the same way that it does when deciding whether the state has proved a confession is voluntary." The court then determined that the testimony of the alleged victim was clear and reasonable, and “prosecution for attempted murder [would not be] precluded as a matter of law because the facts do not establish a self-defense immunity." The trial court further found that immunity had not been established as a matter of fact or law, and denied the motion to...

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