Bretherick v. State

Decision Date09 July 2015
Docket NumberNo. SC13–2312.,SC13–2312.
Citation170 So.3d 766
PartiesJared BRETHERICK, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida Supreme Court

Eric J. Friday of Fletcher & Phillips, Jacksonville, FL; and Dawn L. Drellos–Thompson, Naples, FL, for Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, FL; Wesley Harold Heidt, Bureau Chief, Criminal Appeals, and Kristen Lynn Davenport, Assistant Attorney General, Daytona Beach, FL, for Respondent.

John C. Frazer, National Rifle Association of America, Fairfax, VA; and Jason Brent Gonzalez of Shutts & Bowen LLP, Tallahassee, FL, for Amicus Curiae National Rifle Association of America.

Lesley Rickard McKinney of McKinney, Wilkes, & Mee, PLLC, Jacksonville, FL, for Amicus Curiae Florida Carry, Inc.Arthur Ivan Jacobs of Jacobs Sholz & Associates, LLC, Fernandina Beach, FL, for Amicus Curiae the Florida Prosecuting Attorneys Association, Inc.



The issue in this case arises from Florida's “Stand Your Ground” law, section 776.032, Florida Statutes (2011), which provides for immunity from prosecution when a defendant has used force in accordance with certain specified statutory circumstances. Specifically, we address the burden of proof in a pretrial evidentiary hearing where the defendant has filed a motion to dismiss, claiming this statutory immunity from prosecution.1

In Bretherick v. State, 135 So.3d 337, 340 (Fla. 5th DCA 2013), the Fifth District Court of Appeal held that the defendant has the burden to prove, by a preponderance of the evidence at the pretrial evidentiary hearing, that he or she is entitled to immunity from prosecution. The Fifth District then certified the following question of great public importance for this Court's review as to whether the defendant or State bears the burden of proof under the Stand Your Ground law:


Id. at 341. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.2

We conclude that the Fifth District correctly determined that the defendant bears the burden of proof, by a preponderance of the evidence, to demonstrate entitlement to Stand Your Ground immunity at the pretrial evidentiary hearing. We therefore answer the certified question in the negative and approve the Fifth District's decision.

In Dennis v. State, 51 So.3d 456 (Fla.2010), we approved the procedure of a pretrial evidentiary hearing set forth in Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008), for evaluating a claim of immunity under the Stand Your Ground law. Although in Dennis we did not separately discuss the burden of proof, we quoted extensively from the First District Court of Appeal's opinion in Peterson, including portions in which the First District explicitly stated that the defendant would bear the burden of proving, by a preponderance of the evidence, entitlement to immunity from prosecution at the pretrial evidentiary hearing. See Dennis, 51 So.3d at 459–60.

We now make explicit what was implicit in Dennis —the defendant bears the burden of proof by a preponderance of the evidence at the pretrial evidentiary hearing. This is the conclusion reached by every Florida appellate court to consider this issue both before and after Dennis, and it is a conclusion fully consistent with the legislative intent to provide immunity to a limited class of defendants who can satisfy the statutory requirements.

We therefore reject Bretherick's position and the position advanced by the dissent that the State must disprove entitlement to Stand Your Ground immunity beyond a reasonable doubt at the pretrial evidentiary hearing, as is the State's burden to obtain a conviction at trial. The dissent's view has never previously been embraced by any state with an analogous immunity law and is actually inconsistent with the procedure for resolving motions to dismiss involving other types of statutory immunity. Placing the burden of proof on the defendant at the pretrial evidentiary hearing is principled, practical, and supported by our precedent.


The defendant, Jared Bretherick, was charged by information with aggravated assault with a firearm under section 784.021(1)(a), Florida Statutes (2011), for his conduct during an encounter with another driver on a highway in 2011. Bretherick filed a motion to dismiss under Florida Rule of Criminal Procedure 3.190(b), claiming immunity from prosecution under section 776.032, Florida Statutes, Florida's “Stand Your Ground” law. The Stand Your Ground law provides that when a person uses force as permitted by sections 776.012, 776.013, or 776.031, Florida Statutes (2011), the person is entitled to immunity from criminal prosecution. Bretherick sought a pretrial evidentiary hearing on his motion to dismiss, consistent with this Court's decision in Dennis, 51 So.3d at 463, which approved the procedure of a pretrial evidentiary hearing to consider a defendant's claim of entitlement to stand Your Ground immunity.

The Fifth District summarized the trial court's factual findings based on the evidence elicited at the evidentiary hearing as follows:

On December 29, 2011, the Bretherick family was on vacation in Central Florida, driving toward Downtown Disney, on a 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. 3 At some point, Dunning's truck rolled back twelve to eighteen inches toward the Brethericks' vehicle. The police arrived and diffused the volatile encounter.

Bretherick, 135 So.3d at 338–39.

Based on its factual findings following the evidentiary hearing, the trial court concluded that Bretherick did not establish entitlement to immunity by a preponderance of the evidence and denied Bretherick's motion to dismiss. The trial court explained as follows:

This Court finds that the actions of Derek Dunning did not rise to the level of a forcible felony (Aggravated Assault or False Imprisonment) as defined in section 776.08, Fla. Stat. At best, Mr. Dunning's driving pattern was reckless and his threatening act of getting out of his truck and approaching the Defendant's vehicle was an assault. It would have been reasonable, under the circumstances in this case, for anyone of the Brethericks to use non-deadly force as Mr. Dunning exited his vehicle, in the middle lane of a divided 6 lane highway, and approached their vehicle. The use of non-deadly force could have included brandishing a firearm to repel the imminent threat of unlawful force facing them at that moment. The Defendant must prove by a preponderance of the evidence that the threat was imminent and his fear was reasonable. However, the facts of this case show just the opposite; that Dunning retreated to his truck when he saw Ronald hold up the holstered handgun. The threat was no longer imminent, and in fact, the possible volatile situation had been diffused. The Defendant's subjective fear was no longer reasonable.

(Footnotes omitted.)

After the trial court subsequently denied Bretherick's motion to reconsider its denial of his motion to dismiss, Bretherick filed a petition for writ of prohibition in the Fifth District. The Fifth District concluded that under the procedure for Stand Your Ground pretrial evidentiary hearings set forth in Dennis, “the trial court properly placed the burden of proof on [Bretherick].” Id. at 340. The Fifth District then concluded that Bretherick was not entitled to Stand Your Ground immunity, determining that “based on the trial court's findings of fact, which are supported by competent, substantial evidence, ... the motion to dismiss was properly denied.” Id. The Fifth District reasoned as follows:

The trial court correctly found that Dunning's actions did not rise to the level of false imprisonment, aggravated assault, or any other forcible felony, and therefore, the Defendant could not justify his use of force on this basis. No one saw Dunning with a gun. Dunning retreated to his vehicle when Ronald Bretherick held up a holstered weapon. The trial court also properly determined that there was no longer an imminent threat and that the Defendant's subjective fear at that

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