Peterson v. State

Decision Date23 April 2008
Docket NumberNo. 1D07-3943.,1D07-3943.
Citation983 So.2d 27
PartiesZack PETERSON, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida District Court of Appeals

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 dismiss.

Petitioner now seeks a writ of prohibition, arguing he was entitled to immunity as a matter of law. The State responds, suggesting, among other things, that any factual dispute should defeat a claim of statutory immunity, and further suggesting that a motion under section 776.032 should be treated as having been brought under Florida Rule of Criminal Procedure 3.190(c)(4). We reject the State's suggestions and hold that the trial court correctly handled the motion below.

In a much-publicized move, the Florida Legislature enacted in 2005 what has been popularly (e.g. http://en.wikipedia.org/wiki/Castle_Doctrine_# Stand-your-ground) referred to as the "Stand Your Ground" law. Ch.2005-27, § 5, at 202, Laws of Fla. This law, as codified, provides that a person who uses force as permitted in section 776.013 is justified in using such force and is immune from criminal prosecution as well as civil action for the use of such force. § 776.032, Fla. Stat. (2006). Section 776.013, Florida Statutes (2006), states:

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcefully entered, a dwelling, a residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had...

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68 cases
  • State v. Ultreras
    • United States
    • Kansas Supreme Court
    • March 1, 2013
    ...People v. Janes, 982 P.2d 300, 302 (Colo.1999). The Florida Court of Appeal relied heavily on the Guenther decision in Peterson v. State, 983 So.2d 27 (Fla.Dist.App.2008), even though the Florida justified use-of-force immunity statute, Fla. Stat. § 776.032 (2006), differs from the Colorado......
  • State v. Gibbs
    • United States
    • Iowa Supreme Court
    • April 17, 2020
    ...he or she is not precluded from submitting justification to the jury as an affirmative defense at trial. See Peterson v. State , 983 So. 2d 27, 29 (Fla. Dist. Ct. App. 2008). In short, a defendant who wants to jealously guard his or her privilege against self-incrimination can pass up the p......
  • Spitalieri v. Sec'y
    • United States
    • U.S. District Court — Middle District of Florida
    • March 12, 2019
    ...immunity. Resp. Ex. D at 21-27. However, Spitalieri made these arguments in terms of state law only. Id. (citing Peterson v. State, 983 So. 2d 27 (Fla. 1st DCA 2008); §§ 776.012, 776.013, 776.031, 776.032, Fla. Stat.; Velasquez v. State, 9 So. 3d 22 (Fla. 4th DCA 2009); Gray v. State, 13 So......
  • Peoples v. Sec'y, Dep't. of Corr.
    • United States
    • U.S. District Court — Middle District of Florida
    • August 3, 2023
    ... ... U.S.C. § 2254 (Doc. 1) and challenges the validity of ... his state conviction for manslaughter with a weapon, for ... which Mr. Peoples serves thirty years' imprisonment ... After careful consideration ... “[t]wenty-six days before the defendant's trial the ... Appeal Court in Peterson v. State , 983 So.2d 27 ... (Fla. 1st DCA 2008), set forth the appropriate pre-trial ... procedure for deciding claims of stand your ... ...
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1 books & journal articles
  • Pretrial motions and defenses
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 1
    • April 30, 2021
    ...claiming immunity to raise the issue before the trial court. Dennis v. State, 51 So. 3d 456 (Fla. 2010) approving Peterson v. State , 983 So. 2d 27 (Fla. 1st DCA 2008) reversing Dennis v. State , 17 So. 3d 305 (Fla. 4th DCA 2009) First District Court of Appeal Trial court improperly treated......

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