Love v. State, SC18-747

CourtUnited States State Supreme Court of Florida
Writing for the CourtCANADY, C.J.
Citation286 So.3d 177
Parties Tashara LOVE, Petitioner, v. STATE of Florida, Respondent.
Docket NumberNo. SC18-747,SC18-747
Decision Date19 December 2019

286 So.3d 177

Tashara LOVE, Petitioner,
STATE of Florida, Respondent.

No. SC18-747

Supreme Court of Florida.

December 19, 2019

Carlos J. Martinez, Public Defender, and Maria E. Lauredo, Chief Assistant Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, Eleventh Judicial Circuit, Miami, Florida, for Petitioner

Ashley Moody, Attorney General, and Amit Agarwal, Solicitor General, Edward Wenger, Chief Deputy Solicitor General, and Christopher Baum, Deputy Solicitor General, Office of the Attorney General, Tallahassee, Florida, for Respondent

Jason Gonzalez of Shutts & Bowen LLP, Tallahassee, Florida; and Stephen P. Halbrook of Shutts & Bowen LLP, Fairfax, Virginia, for Amici Curiae Unified Sportsmen of Florida, Inc.

David H. Thompson and Davis Cooper of Cooper & Kirk, PLLC, Washington, District of Columbia, for Amicus Curiae National Rifle Association Freedom Action Foundation

Glen P. Gifford, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida; and Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, Florida, for Amici Curiae Florida Public Defender Association, Inc. and Florida Association of Criminal Defense Lawyers

Penny H. Brill of Theodore F. Brill, P.A., Plantation, Florida, for Amicus Curiae League of Prosecutors – Florida

Glenn Burhans, Jr., and Kelly A. O'Keefe of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Tallahassee, Florida, for Amicus Curiae Giffords Law Center to Prevent Gun Violence

Darren A. LaVerne, Daniel M. Ketani, and Timur Tusiray of Kramer Levin Naftalis & Frankel, LLP, New York, New York; and Sean R. Santini of Santini Law, Miami, Florida, for Amici Curiae for Everytown for Gun Safety and Brady Center to Prevent Gun Violence

Ricardo J. Bascuas, Coral Gables, Florida, for Amicus Curiae University of Miami School of Law – Federal Appellate Clinic


286 So.3d 179

The certified conflict issue in this case is whether section 776.032(4), Florida Statutes (2017), which effective in June 2017 altered the burden of proof at pretrial immunity hearings under Florida's "Stand Your Ground" law, applies to pending cases involving criminal conduct alleged to have been committed prior to the effective date of the statute. In the decision below and the certified conflict case, the district courts framed this issue as presenting a "retroactivity" question that itself turns on whether section 776.032(4) is procedural or substantive.

This Court has for review Love v. State , 247 So. 3d 609, 613 (Fla. 3d DCA 2018), in which the Third District Court of Appeal concluded that section 776.032(4) was "a substantive change in the law, and therefore does not apply retroactively." The Third District also concluded that article X, section 9 of the Florida Constitution precluded the statute from being applied retroactively. Id.1 According to the Third District, this lack of retroactivity meant that section 776.032(4) was inapplicable in the case, even though the defendant's immunity hearing took place after the statute went into effect. Id. at 610, 612. In the certified conflict case of Martin v. State , ––– So.3d ––––, ––––, 43 Fla. L. Weekly D1016, D1018, 2018 WL 2074171, at *4 (Fla. 2d DCA May 4, 2018), the Second District Court of Appeal concluded that section 776.032(4) "is procedural in nature and, therefore, retroactive in application; that, as such, it applies to pending cases, including those on appeal." The Second District also concluded that article X, section 9 did not bar retroactive application of the statute. Id. at –––– n.5, 43 Fla. L. Weekly at D1017 n.5. According to the Second District, this retroactivity meant that the defendant who had already been convicted prior to the statute's effective date was "entitled to a new immunity hearing under the amended procedure of the statute." Id. at ––––, 43 Fla. L. Weekly at D1018; see id. at ––––, 43 Fla. L. Weekly at D1016. This Court granted discretionary review of Love and has jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We agree with Martin that section 776.032(4) is a procedural change in the

286 So.3d 180

law and is not categorically barred by article X, section 9 from applying in pending cases. Accordingly, we quash Love . However, we disagree with Martin 's all-or-none conclusion that the new procedures apply in all pending cases, even where the immunity hearing was held prior to the statute's effective date. The determination of whether a new procedure applies in a pending case generally depends on the posture of the case. Here, the relevant event is the immunity hearing, and section 776.032(4) applies to those immunity hearings taking place on or after the statute's effective date. Because there is no indication the Legislature intended the statute to undo pre-effective-date immunity hearings, we disapprove Martin 's decision to order a new immunity hearing in that case.

We begin by briefly reviewing the Stand Your Ground law and the statutory amendment at issue. We next present the facts and procedural history of Love and discuss Martin . We then explain our decision in this case, including our conclusion that applying section 776.032(4) in a pending case does not entail a retroactive application of the statute.

I. SECTION 776.032(4)

Under the Stand Your Ground law, a person is generally "immune from criminal prosecution and civil action" when that person justifiably uses or threatens to use force under certain circumstances. § 776.032(1), Fla. Stat. (2017) ; see ch. 2005-27, Laws of Fla. The criminal immunity "includes arresting, detaining in custody, and charging or prosecuting the defendant." § 776.032(1), Fla. Stat. In Dennis v. State , 51 So. 3d 456, 464 (Fla. 2010), this Court held that a motion to dismiss asserting immunity under section 776.032 "should be treated as a motion filed pursuant to [Florida Rule of Criminal Procedure] 3.190(b)" and that the trial court should conduct a pretrial evidentiary hearing and "decide the factual question of the applicability of the statutory immunity." But Dennis did not reach the issue of burden of proof. That issue was later decided in Bretherick v. State , 170 So. 3d 766 (Fla. 2015). Bretherick concluded that at a pretrial immunity hearing "the defendant bears the burden of proof, by a preponderance of the evidence, to demonstrate entitlement to Stand Your Ground immunity." Id. at 768. The dissent in Bretherick argued that the burden should be the same as when a Stand Your Ground defense is presented at trial, because "the essential nature of the [underlying] factual question" is the same in both settings. Id. at 779 (Canady, J., dissenting). In other words, the burden should be on the State to "establish[ ] beyond a reasonable doubt that the defendant's conduct was not justified under the governing statutory standard." Id.

Section 776.032(4) was the Legislature's eventual response to Bretherick . The 2017 amendment to section 776.032 provides:

(4) In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).

§ 776.032(4), Fla. Stat. (2017) ; see ch. 2017-72, § 1, Laws of Fla. The Legislature thus largely adopted the Bretherick dissent but with a "clear and convincing" burden on the State as opposed to the more exacting trial burden of "beyond a reasonable doubt." In adopting this framework, the Legislature provided that the legislation "shall take effect upon becoming a law." Ch. 2017-72, § 2, Laws of Fla.

286 So.3d 181


Petitioner, Tashara Love, seeks review of the Third District's decision denying her petition for writ of prohibition after the trial court denied her motion for immunity. The relevant facts are as follows:

On November 26, 2015, Love and a group of women were involved in an altercation, which lasted approximately three minutes, outside a Miami-Dade County nightclub. At the end of the altercation, Love shot the victim, Thomas Lane, as he was about to hit her daughter. Love does not dispute these facts.

Thereafter, the State charged Love with one count of attempted second degree murder with a firearm. Love invoked Florida's Stand Your Ground law, section 776.032, Florida Statute[s] (2017), asserting she was immune from prosecution because she committed the crime while defending her daughter.

Love , 247 So. 3d at 610. Love argued to the trial court that the newly enacted amendment in section 776.032(4) should apply to her immunity hearing. The State countered that section 776.032(4) did not have retroactive application and that even if it did, applying it to pending cases would violate article X, section 9. The State argued in the alternative that the statute violated the separation of powers doctrine.

The Trial Court's Order

After an evidentiary hearing, the trial court sought to determine whether "the Amendment should apply to all pending cases or ... only to cases where the conduct at issue occurred after the effective date."...

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