Smiley v. State

• Decision Date: 07 June 2007
• Docket Number: No. SC06-1237.,SC06-1237.
• Parties: Robert Lee SMILEY, Jr., Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

966 So.2d 330

Robert Lee SMILEY, Jr., Petitioner, v. STATE of Florida, Respondent.

No. SC06-1237.

Supreme Court of Florida.

June 7, 2007.

Rehearing Denied October 1, 2007.

Carey Haughwout, Public Defender, Fifteenth Judicial Circuit, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, FL, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, Florida, Celia Terenzio, Bureau Chief, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, FL, for Respondent.

LEWIS, C.J.

We have for review a decision of a district court of appeal in which the following question was certified by the court to be of great public importance:

DOES SECTION 776.013, FLORIDA STATUTES (2005), APPLY TO CASES PENDING AT THE TIME THE STATUTE BECAME EFFECTIVE?

State v. Smiley, 944 So.2d 1027, 1028 (Fla. 4th DCA 2006). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that follow, we answer the certified question in the negative.

FACTS AND PROCEDURAL HISTORY

The instant action arises from the decision by the Fourth District Court of Appeal in State v. Smiley, 927 So.2d 1000 (Fla. 4th DCA 2006). The facts of the underlying action were detailed in the opinion of that court:

Robert Smiley was charged with first degree premeditated murder occurring on November 6, 2004. What little appears in the record before us is that Smiley shot the victim who was an occupant of Smiley's cab. Smiley appears to be making a claim of self-defense. Just before trial, Smiley filed a motion to permit the use of two special jury instructions based upon the newly enacted section 776.013. Those proposed instructions are:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he reasonable [sic] believes it is necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of a forcible felony.

A person who unlawfully and by force enters or attempts to enter a person's occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

Id. at 1001. The trial court granted the request of Smiley to use these jury instructions after finding that "the statute was remedial and should have retroactive application." Id.

The State sought review of the decision of the trial court through an emergency petition for writ of certiorari to the Fourth District. After entering an order to show cause why relief sought by the State should not be granted, the Fourth District received argument from both parties. The Fourth District also granted the motion of the State to stay the trial court proceedings.

The Fourth District granted the State's petition, holding that section 776.013 of the Florida Statutes (2005) does not apply to conduct committed prior to its effective date of October 1, 2005; therefore, Smiley was not entitled to the requested jury instructions. See id. at 1001, 1003. The Fourth District correctly recognized that prior to this legislation, Florida common law required a duty to retreat in most situations with limited exceptions under "the castle doctrine." See id. at 1001-02.¹ The Fourth District determined that "[n]othing in the legislation indicates an intent to apply the abrogation of the common law retroactively." Id. at 1003. The Fourth District further reasoned that section 776.013 made a substantive change to section 776.012, Florida Statutes (2004), and it therefore would be a violation of article X, section 9 of the Florida Constitution for section 776.013 to be given retroactive application. See id. The court further concluded that section 776.013 is not remedial, which would permit retroactive application, because the statute created a new right of "self-defense without the duty to retreat." Id.

Smiley thereafter filed a motion for rehearing or certification of this issue as a question of great public importance. The Fourth District denied rehearing but certified the above question to be of great public importance. See State v. Smiley, 944 So.2d 1027, 1028 (Fla. 4th DCA 2006). Smiley filed a notice to invoke discretionary jurisdiction with this Court on June 21, 2006, and we granted review. See Smiley v. State, 937 So.2d 123 (Fla.2006) (table).

ANALYSIS

The proper standard of review in this case is de novo review. The issue of whether section 776.013 is applicable to cases pending at the time of its enactment is a pure question of law. Notwithstanding that Bunkley v. State, 833 So.2d 739 (Fla.2002), determined whether a change in the decisional law should receive retroactive application, the conclusion of this Court in Bunkley that de novo review was the proper standard is also applicable here with regard to whether a change in the statutory law should receive retroactive application. See id. at 741 (discussing that the issue of whether a decision of this Court should receive retroactive application is a pure question of law that is subject to de novo review).

I. Change in Decisional Law Versus Statutory Law

In the analysis of this certified question, the first distinction with regard to retroactive application of changes in the law is that between decisional law and statutory law. In Florida, the Witt² analysis determines whether a change in the decisional law will receive retroactive application:

[F]or a change of law to be applied retroactively it must: (1) originate in [the Supreme Court of Florida] or the United States Supreme Court; (2) be constitutional in nature; and (3) represent a development of fundamental significance.

New v. State, 807 So.2d 52, 53 (Fla.2001) (citing Witt, 387 So.2d at 931). Contrary to the argument of Smiley, the decision of this Court in Weiand v. State, 732 So.2d 1044 (Fla.1999), is not applicable to resolve the current question of whether section 776.013 should apply to pending cases, because Weiand determined the retroactivity of a change in the decisional law. See id. at 1058 (holding that the rule established in Weiand, which was that a defendant had no duty to retreat from his or her residence before using deadly force to prevent death or great bodily harm from a co-occupant, would apply to all cases that were pending but not to convictions that were final). Conversely, a different analysis must be applied to determine the question of whether a change in the statutory law, such as with section 776.013, should receive retroactive application. See Thompson v. State, 887 So.2d 1260, 1263-64 (Fla. 2004) ("[T]he question of retroactivity under Witt is not applicable to this case because we are examining a change in the statutory law of this state not a change in decisional law . . . .").

II. Procedural/Remedial Change Versus Substantive Change

In the analysis of a change in statutory law, a key determination is whether the statute constitutes a procedural/remedial change or a substantive change in the law. The rule for procedural/remedial changes, in contrast to the presumption against retroactive application for substantive changes, is as follows:

Remedial statutes or statutes relating to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of rights already existing, do not come within the legal conception of a retrospective law, or the general rule against retrospective operation of statutes.

City of Lakeland v. Catinella, 129 So.2d 133, 136 (Fla.1961) (emphasis added). Moreover, the "presumption in favor of prospective application generally does not apply to `remedial' legislation; rather, whenever possible, such legislation should be applied to pending cases in order to fully effectuate the legislation's intended purpose." Arrow Air, Inc. v. Walsh, 645 So.2d 422, 424 (Fla.1994) (citing City of Orlando v. Desjardins, 493 So.2d 1027 (Fla.1986)). Finally, a statute that achieves a "remedial purpose by creating substantive new rights or imposing new legal burdens" is treated as a substantive change in the law. Arrow Air, Inc., 645 So.2d at 424.

The primary effect of section 776.013 is to specifically incorporate "no duty to retreat" for certain situations when deadly force can immediately occur without needing to first retreat. The language is as follows:

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

§ 776.013(3), Florida Stat. (2005) (emphasis added). To aid the determination of whether a person had a reasonable belief that self-defense was needed or a forcible felony was intended, section 776.013 also created the following two presumptions:³

(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 forcibly entered, a dwelling, 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 occurred.

. . . .

(4) A person who unlawfully and by force enters or attempts to enter a person's dwelling, residence, or occupied...