Mency v. State, No. 1D18-1993

• Court: Court of Appeal of Florida (US)
• Writing for the Court: PER CURIAM.
• Citation: 292 So.3d 1 (Mem)
• Parties: Corry MENCY, Appellant, v. STATE of Florida, Appellee.
• Decision Date: 12 June 2019
• Docket Number: No. 1D18-1993

292 So.3d 1 (Mem)

Corry MENCY, Appellant,
v.
STATE of Florida, Appellee.

No. 1D18-1993

District Court of Appeal of Florida, First District.

June 12, 2019

Andy Thomas, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.

Per Curiam.

In this appeal, the defendant raises two issues. First, he argues that he is entitled to a new trial based on the trial court's failure to sustain his objections to questions asked by the State during its cross-examination. Second, he argues that he is entitled to a new self-defense immunity hearing under the Stand-Your-Ground statutes because the trial court failed to apply the proper burden of proof. With regards to the first issue, we find no reversible error. With regards to the second issue, the appellant makes two arguments, one of which was not properly preserved. At trial, the appellant essentially argued that the trial court needed to determine whether section 776.032(4) applied retroactively. On appeal, the appellant argues that the trial court failed to make that ruling. However, the trial court stated that regardless of who had the burden, the appellant was not entitled to immunity. This ruling implies that the trial court made a ruling under both standards. Because the trial court applied the correct standard, the trial court did not err. The appellant also argues that the trial court failed to assess the evidence presented by the defense when it ruled on his immunity claim. However, that issue was not properly preserved for appeal because the appellant failed to raise that issue to the trial court. See Rodriguez v. State , 609 So. 2d 493, 499 (Fla. 1992) ("It is well settled that the specific legal ground upon which a claim is based must be raised at trial and a claim different than that raised below will not be heard on appeal.") Accordingly, we affirm the appellant's judgment and sentence.

AFFIRMED .

B.L. Thomas, C.J., and Lewis, J., concur; Roberts, J., concurs with written opinion.

Roberts, J., concurring.

I concur with the majority's opinion, but write separately to address the issue of the defendant's argument that he is entitled to a new self-defense immunity hearing. This Court has adopted the position that a defendant is entitled to a new self-defense immunity hearing when the trial court incorrectly applies section 776.032, Florida Statutes. Aviles-Manfredy v. State , 44 Fla. L. Weekly D187, ––– So.3d ––––, 2019 WL 116471 (Fla. 1st DCA January 7, 2019) (adopting the procedure that the trial court must hold a new Stand-Your-Ground hearing as stated in Martin v. State , 43 Fla. L. Weekly D1016, ––– So.3d ––––, 2018 WL 2074171 (Fla. 2d DCA May 4, 2018) ). However, the use of that procedure conflicts with the purpose of the immunity hearing, which is to provide a defendant with a procedural mechanism that allows him to present his self-defense claim early rather than force him to wait until trial.

Self-Defense

Florida has long acknowledged the fundamental right of its citizens to use force to defend themselves or others. Art. I, § 8(a), Fla. Const. The essential elements

292 So.3d 2

of self-defense have largely remained the same; to wit, a person may use deadly force when it is reasonably necessary to prevent imminent death or great bodily harm to the person or to another person. § 776.012, Fla. Stat. Self-defense was and is an affirmative defense in which the one asserting self-defense is required to establish a prima facie case of the elements of the self-defense claim. The burden then rests on the State to establish that the claim is not justified "to the exclusion of every reasonable doubt," which is consistent with the State's burden in every criminal case. See § 90.302, Fla. Stat.; Grady v. State , 129 Fla. 416, 176 So. 431, 431 (1937) (the burden of establishing a defendant's guilt rests with the State). However, prior to 2005, the claim of self-defense could only be presented as an affirmative defense at trial.

The Stand-Your-Ground Act

In 2005, the Legislature strengthened the right to self-defense when it passed Chapter 2005-27, Laws of Florida. That bill changed the application of the law of self-defense in three major ways. First, it eliminated the duty to retreat when attacked outside the home before using lawful deadly force. Ch. 2005-27, §§ 2-3, Laws of Fla. Second, the bill created a presumption that a person had "reasonable fear of imminent ... death or great bodily harm" if the person was attacked in his or her home or conveyance. Ch. 2005-27, § 1, Laws of Fla. Third, the bill provided immunity from "arrest, detaining in custody, charging or prosecuting" a person validly exercising his or her right to self-defense. Ch. 2005-27, § 4, Laws of Fla.

Immunity from prosecution, the key issue in this case, was created by adding a new section to chapter 776, Florida Statutes, which reads as follows:

776.032 Immunity from Criminal prosecution and civil action for justifiable use of force. - -

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s.776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force[.]

Sections 776.012, 776.013, and 776.031 are the general self-defense statutes that may be asserted at trial and would have only been allowed to be asserted at trial without the immunity provided by section 776.032. Most of the case law refers to this immunity...