Rich v. State

• Decision Date: 10 June 2020
• Docket Number: Case No. 2D19-4196
• Citation: 311 So.3d 126
• Parties: Derrion RICH, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

311 So.3d 126

Derrion RICH, Petitioner,

v.STATE of Florida, Respondent.

Case No. 2D19-4196

District Court of Appeal of Florida, Second District.

Opinion filed June 10, 2020

Jeremy S. Clark and Cory J. Powell, Clark Law, St. Petersburg, for Petitioner.

Ashley Moody, Attorney General, Tallahassee, and Jeffrey H. Siegal, Assistant Attorney General, Tampa, for Respondent.

LUCAS, Judge.

The State of Florida alleges that Derrion Rich fired a handgun at Maurice Cole while they were sitting together in Mr. Rich's car, killing Mr. Cole. The State contends that what precipitated this shooting was a disputed drug deal and has charged Mr. Rich with second-degree murder. Mr. Rich claims that he acted in self-defense when he shot Mr. Cole and filed a motion to assert his immunity under section 776.032, Florida Statutes (2017).¹

At the hearing on Mr. Rich's motion it appears that neither the State nor the defense wished to broach what happened during the alleged altercation between Mr. Rich and Mr. Cole that led to the latter's shooting; instead, it was agreed that the State would focus its evidence, and the parties would confine their arguments, to the legal effect of what happened before the altercation. Specifically, the court and counsel agreed to limit the hearing to: (1) the discrete evidentiary issue of whether Mr. Rich was engaged in criminal activity at the time leading up to the shooting, and, (2) if he was, what legal effect that would have on his claim of immunity. Or, as defense counsel put it: "We're not going to get into the merits of the motion ... just the criminal activity." The court agreed to proceed in the manner the attorneys proposed.

The reason for this unusual approach, apparently, was to expedite our court's consideration of a legal issue concerning section 776.032's interpretation that the Fifth District had recently addressed in State v. Kirkland, 276 So. 3d 994, 997 (Fla. 5th DCA 2019). In Kirkland, the Fifth District concluded that "[b]ecause Kirkland was engaged in illegal activity at the time he used or threatened to use deadly force, he [was] not entitled to benefit from the provisions of the Stand Your Ground Law." Id. Mr. Rich's attorney requested the circuit court provide a limited ruling on whether he would be entitled to the statute's immunity if he had been engaged in criminal activity at the time of the alleged offense: "[I]f you [the court] deny our ability to do that, then I will take it up to the Second on a writ and have them make a call on it because ... I disagree with the case—the [Fifth] DCA saying there's no entitlement to the immunity."

With that framework in place, the State presented one witness, Sarah Wright. Ms. Wright testified that she had met Mr. Rich in his car in a parking lot outside of an apartment, had paid Mr. Rich for heroin and crack cocaine, and that she, in turn, gave the heroin to Mr. Cole. Mr. Cole, she said, was apparently dissatisfied with the heroin because it "didn't weigh correctly," and so she phoned Mr. Rich to return to discuss the matter. Mr. Rich drove back to the parking lot, and Mr. Cole approached his car from the passenger side door.

Q. And how did that go?

A. At first it was, you know, he [Mr. Rich] was trying to get him to buy other things instead of giving the money back.

Q. Fentanyl?

A. Typically, you don't get your money back in a drug deal. And it escalated from there.

Ms. Wright testified that while Mr. Cole was sitting in the passenger seat of Mr. Rich's car, she saw Mr. Rich retrieve a revolver from his side of the console and put it in his lap. The State did not ask Ms. Wright to describe whatever may have happened next, but with the prosecutor's prompt of "events went forward," resulting in her "hearing, what, two shots," Ms. Wright replied, "Yes."

The defense declined to cross-examine Ms. Wright. Mr. Rich's counsel also indicated that Mr. Rich would not dispute that the substance Ms. Wright purchased was heroin, and further stipulated that Mr. Rich was a convicted felon on the date of the incident. The remainder of the proceeding was spent in legal argument over Kirkland's interpretation of the Stand Your Ground statute.

At the conclusion of the hearing, the circuit court ruled that Mr. Rich was engaged in criminal activity and that "given the [Fifth] DCA case, that precludes a finding of stand your ground immunity," Mr. Rich was not entitled to immunity and a dismissal of the second-degree murder charge. The court indicated that it was bound to follow Kirkland in the absence of any guiding precedent from our district. The court's denial of Mr. Rich's motion was not reduced to writing.

Mr. Rich now seeks review of that ruling through a writ of prohibition.

The parties have presented this case in an unusual manner. Ordinarily, immunity claims under section 776.032 should proceed as follows: first, the accused defendant files a motion; second, the court reviews the motion to determine whether it raises "a prima facie claim of self-defense immunity"; third, if it does, the court convenes and completes an evidentiary hearing under the auspice of Florida Rule of Criminal Procedure 3.190(b), in which the State bears the burden of proving by clear and convincing evidence that the accused defendant is not entitled to statutory immunity; and then, fourth, the court issues a dispositive ruling either granting or denying the defendant's motion. See generally § 776.032(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)."); Dennis v. State, 51 So. 3d 456, 462-63 (Fla. 2010) (adopting procedure of convening an evidentiary hearing under Rule 3.190(b) to adjudicate motions for statutory immunity under section 776.032 ); Jefferson v. State, 264 So. 3d 1019, 1029 (Fla. 2d DCA 2018) ("In sum, procedurally, a claim for immunity from criminal prosecution pursuant to section 736.032(4) must first be raised, as petitioner did here, by the criminal defendant in a pretrial rule 3.190(b) motion to dismiss. The trial court is then to determine whether, at first glance and assuming all facts as true, the alleged facts set forth in the motion support the elements of self-defense in either section 776.012, 776.013, or 776.031. If the trial court determines that the defendant's claim of self-defense satisfies the requirements set forth in the applicable self-defense statute raised by the accused, the State shall then present clear and convincing evidence to overcome the self-defense claim.").

The court below never completed that fourth step. At the parties' behest, the court did not rule on the merits of Mr. Rich's motion. Because there has been no dispositive ruling on the merits of Mr. Rich's motion, we cannot determine whether Mr. Rich is entitled to prohibition on the merits of his petition. Cf. Jefferson, 264 So. 3d at 1023 (holding that prohibition was an improper vehicle to review a circuit court's ruling on a defendant's Stand Your Ground immunity motion where the circuit court declined to convene an evidentiary hearing on the motion). When an appellate court issues a writ of prohibition to a lower tribunal, it means just that: the court below will be prohibited from acting further. See Madico v. Taos Constr., Inc., 605 So. 2d 850, 853 (Fla. 1992) ("Prohibition is an extraordinary writ by which a superior court may prevent an inferior court or tribunal, over which it has appellate and supervisory jurisdiction, from acting outside its jurisdiction."); State ex rel. B. F. Goodrich Co. v. Trammell, 140 Fla. 500, 192 So. 175, 176 (1939) ("We have repeatedly held that the writ of prohibition is that process by which an inferior court is restrained by a superior court from usurping jurisdiction over parties or subject matter with which it has not been vested by law, or when action is threatened which would be in excess of and beyond its jurisdiction."). Regardless of whether we were to agree, disagree, or partly agree with the Kirkland court's construction of section 776.012, any ruling we would issue on Mr. Rich's petition, as it is presently framed, would necessitate further action by the circuit court below. Indeed, Mr. Rich states as much in his petition. He does not ask us to prohibit the circuit court from considering his case further, rather he "seeks a writ of prohibition preventing the trial court from denying his motion on a limited basis, effectively quashing the order denying Petitioner's motion for declaration of immunity and dismissal." In essence, he requests an advisory opinion from this court on a preliminary (but certainly important) legal question about section 776.012's interpretation.

But that is not a proper function for the writ of prohibition. Cf. Fla. Comm'n on Hurricane Loss Projection Methodology v. State, Dept. of Ins. and Treasurer, 716 So. 2d 345, 346 (Fla. 1st DCA 1998) (dismissing state department's petition challenging administrative law judge's decision because, "In short, we are asked to further 'the Commission's work' by rendering an advisory opinion on whether a non-dispositive passage in a favorable recommended order correctly stated the law"). The Florida Supreme Court has cautioned against using the writ of prohibition for the purpose of obtaining legal guidance:

Another distinguishing feature of the writ is that it is a preventive rather than a corrective remedy .... Nor will the suggestion that there are other suits of the same nature pending against the relator in the same court avail to procure the writ, since the court will not issue a prohibition in a case where it is not justified, for the sole purpose of establishing a principle to govern other cases .

See English v. McCrary, 348 So. 2d 293, 297 (Fla. 1977) (emphasis added) (quoting State ex rel....