Supreme Court of Florida
____________
No. SC13-2312
____________
JARED BRETHERICK,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
[July 9, 2015]
PARIENTE, J.
The issue in this case arises from Florida’s “Stand Your Ground” law,
section 776.032, Florida Statutes (2011), which provides for immunity from
prosecution when a defendant has used force in accordance with certain specified
statutory circumstances. Specifically, we address the burden of proof in a pretrial
evidentiary hearing where the defendant has filed a motion to dismiss, claiming
this statutory immunity from prosecution.1
1. Since the time of the underlying events in this case, the Florida
Legislature has amended section 776.032. See ch. 2014-195, § 6, Laws of Fla.
The amendment added immunity for certain situations involving the “threatened
use of force” and did not address the pretrial procedure or the burden of proof that
In Bretherick v. State, 135 So. 3d 337, 340 (Fla. 5th DCA 2013), the Fifth
District Court of Appeal held that the defendant has the burden to prove, by a
preponderance of the evidence at the pretrial evidentiary hearing, that he or she is
entitled to immunity from prosecution. The Fifth District then certified the
following question of great public importance for this Court’s review as to whether
the defendant or State bears the burden of proof under the Stand Your Ground law:
ONCE THE DEFENSE SATISFIES THE INITIAL BURDEN OF
RAISING THE ISSUE, DOES THE STATE HAVE THE BURDEN
OF DISPROVING A DEFENDANT’S ENTITLEMENT TO SELF-
DEFENSE IMMUNITY AT A PRETRIAL HEARING AS IT DOES
AT TRIAL?
Id. at 341. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.2
We conclude that the Fifth District correctly determined that the defendant
bears the burden of proof, by a preponderance of the evidence, to demonstrate
entitlement to Stand Your Ground immunity at the pretrial evidentiary hearing.
We therefore answer the certified question in the negative and approve the Fifth
District’s decision.
are at issue here. Thus, this amendment has no effect on our holding or analysis,
which would remain the same if we applied the current statute.
2. The National Rifle Association of America and Florida Carry, Inc., filed
amicus curiae briefs in support of the Petitioner, Jared Bretherick, who was the
defendant in the trial court. The Florida Prosecuting Attorneys Association
appeared as an amicus curiae on behalf of the State.
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In Dennis v. State, 51 So. 3d 456 (Fla. 2010), we approved the procedure of
a pretrial evidentiary hearing set forth in Peterson v. State, 983 So. 2d 27 (Fla. 1st
DCA 2008), for evaluating a claim of immunity under the Stand Your Ground law.
Although in Dennis we did not separately discuss the burden of proof, we quoted
extensively from the First District Court of Appeal’s opinion in Peterson, including
portions in which the First District explicitly stated that the defendant would bear
the burden of proving, by a preponderance of the evidence, entitlement to
immunity from prosecution at the pretrial evidentiary hearing. See Dennis, 51 So.
3d at 459-60.
We now make explicit what was implicit in Dennis—the defendant bears the
burden of proof by a preponderance of the evidence at the pretrial evidentiary
hearing. This is the conclusion reached by every Florida appellate court to
consider this issue both before and after Dennis, and it is a conclusion fully
consistent with the legislative intent to provide immunity to a limited class of
defendants who can satisfy the statutory requirements.
We therefore reject Bretherick’s position and the position advanced by the
dissent that the State must disprove entitlement to Stand Your Ground immunity
beyond a reasonable doubt at the pretrial evidentiary hearing, as is the State’s
burden to obtain a conviction at trial. The dissent’s view has never previously
been embraced by any state with an analogous immunity law and is actually
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inconsistent with the procedure for resolving motions to dismiss involving other
types of statutory immunity. Placing the burden of proof on the defendant at the
pretrial evidentiary hearing is principled, practical, and supported by our precedent.
FACTS AND PROCEDURAL HISTORY
The defendant, Jared Bretherick, was charged by information with
aggravated assault with a firearm under section 784.021(1)(a), Florida Statutes
(2011), for his conduct during an encounter with another driver on a highway in
2011. Bretherick filed a motion to dismiss under Florida Rule of Criminal
Procedure 3.190(b), claiming immunity from prosecution under section 776.032,
Florida Statutes, Florida’s “Stand Your Ground” law. The Stand Your Ground law
provides that when a person uses force as permitted by sections 776.012, 776.013,
or 776.031, Florida Statutes (2011), the person is entitled to immunity from
criminal prosecution. Bretherick sought a pretrial evidentiary hearing on his
motion to dismiss, consistent with this Court’s decision in Dennis, 51 So. 3d at
463, which approved the procedure of a pretrial evidentiary hearing to consider a
defendant’s claim of entitlement to stand Your Ground immunity.
The Fifth District summarized the trial court’s factual findings based on the
evidence elicited at the evidentiary hearing as follows:
On December 29, 2011, the Bretherick family was on vacation
in Central Florida, driving toward Downtown Disney, on a heavily
travelled, six-lane divided road in Osceola County. Ronald
Bretherick, the father, was driving in the middle lane westbound
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when, in his rearview mirror, he saw a blue truck rapidly approaching
them. The truck almost side-swiped them as it passed in the right
lane. As the truck passed the Brethericks, the driver, Derek Dunning,
“stared at them in a threatening manner,” but made no statements or
gestures.
Dunning’s truck cut in front of the Bretherick vehicle in the
middle lane, slammed on the brakes, and came to a complete stop.
There was no traffic or other impediment that required this action.
Ronald Bretherick also stopped his vehicle, one to two car lengths
behind Dunning’s truck. Dunning got out of his truck and walked
toward the Bretherick vehicle. He was unarmed. Without exiting,
Ronald Bretherick held up a holstered handgun, and Dunning returned
to his truck without uttering a word.
After Dunning got back into his truck, the Defendant, Ronald’s
adult son, got out of the rear passenger’s seat. He approached the
driver’s side of Dunning’s truck within a few feet of the driver, while
pointing the handgun at Dunning. The Defendant told Dunning to
move his truck or he would be shot. Dunning misunderstood, and
believed that the Defendant told him that if he moved, he would be
shot. This slight but critical misunderstanding explains everyone’s
subsequent actions.
The Defendant returned to his own vehicle and took up various
positions, continuing to point the gun at Dunning. The Brethericks,
Dunning, and several passersby all called 911. The Defendant’s
mother and sister exited their vehicle and took refuge in a ditch on the
north side of the road. The Defendant told his family that Dunning
said he had a gun, but no one saw Dunning with a weapon, and the
trial court found this not to be credible.[3] At some point, Dunning’s
truck rolled back twelve to eighteen inches toward the Brethericks’
vehicle. The police arrived and diffused the volatile encounter.
Bretherick, 135 So. 3d at 338-39.
3. The trial court concluded that Dunning was not in possession of a gun,
and if Bretherick had personally believed Dunning had a gun, it was “an
unreasonable belief at best.”
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Based on its factual findings following the evidentiary hearing, the trial
court concluded that Bretherick did not establish entitlement to immunity by a
preponderance of the evidence and denied Bretherick’s motion to dismiss. The
trial court explained as follows:
This Court finds that the actions of Derek Dunning did not rise
to the level of a forcible felony (Aggravated Assault or False
Imprisonment) as defined in section 776.08, Fla. Stat. At best, Mr.
Dunning’s driving pattern was reckless and his threatening act of
getting out of his truck and approaching the Defendant’s vehicle was
an assault. It would have been reasonable, under the circumstances in
this case, for anyone of the Brethericks to use non-deadly force as Mr.
Dunning exited his vehicle, in the middle lane of a divided 6 lane
highway, and approached their vehicle. The use of non-deadly force
could have included brandishing a firearm to repel the imminent threat
of unlawful force facing them at that moment. The Defendant must
prove by a preponderance of the evidence that the threat was
imminent and his fear was reasonable. However, the facts of this case
show just the opposite; that Dunning retreated to his truck when he
saw Ronald hold up the holstered handgun. The threat was no longer
imminent, and in fact, the possible volatile situation had been
diffused. The Defendant’s subjective fear was no longer reasonable.
(Footnotes omitted.)
After the trial court subsequently denied Bretherick’s motion to reconsider
its denial of his motion to dismiss, Bretherick filed a petition for writ of prohibition
in the Fifth District. The Fifth District concluded that under the procedure for
Stand Your Ground pretrial evidentiary hearings set forth in Dennis, “the trial court
properly placed the burden of proof on [Bretherick].” Id. at 340. The Fifth District
then concluded that Bretherick was not entitled to Stand Your Ground immunity,
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determining that “based on the trial court’s findings of fact, which are supported by
competent, substantial evidence, . . . the motion to dismiss was properly denied.”
Id. The Fifth District reasoned as follows:
The trial court correctly found that Dunning’s actions did not
rise to the level of false imprisonment, aggravated assault, or any
other forcible felony, and therefore, the Defendant could not justify
his use of force on this basis. No one saw Dunning with a gun.
Dunning retreated to his vehicle when Ronald Bretherick held up a
holstered weapon. The trial court also properly determined that there
was no longer an imminent threat and that the Defendant’s subjective
fear at that point was objectively unreasonable.
There was at least one car length between Dunning’s vehicle
and the Brethericks’ vehicle. When Dunning’s truck rolled back not
more than eighteen inches, that action standing alone did not
constitute the act of false imprisonment as the Defendant contends.
Notably, the Defendant’s mother and sister exited the vehicle and took
refuge nearby. Several other cars passed by in the two lanes on either
side of the middle lane where the Dunning and Bretherick vehicles
sat. It was not reasonable for the Defendant to believe that it was
necessary for him to approach Dunning’s truck with a gun drawn in
order to defend himself or his family.
Id. at 340-41. The Fifth District also noted, in certifying the question for this
Court’s consideration, that “[t]he issue of who bears the burden of proof may well
be significant where the case is an extremely close one, or where only limited
evidence is presented for the trial court’s consideration.” Id. at 341. While both
the trial court and the Fifth District agreed that Bretherick had not sustained his
burden of proof at the pretrial stage, neither court held that Bretherick was
foreclosed from raising self-defense as an affirmative defense to be considered by
the jury at trial.
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Judge Schumann concurred specially and commented that if she had not felt
“bound” by Dennis, she “would find that the trial court erred in placing the burden
of proof at the pretrial hearing on the Defendant.” Id. at 341, 344 (Schumann, J.,
concurring specially). Judge Schumann stated that she would follow the reasoning
of courts in Kentucky and Kansas and place the burden of proof upon the State at
the pretrial stage to demonstrate that the use of force was unjustified, because, she
reasoned, “[p]lacing the burden of proof on the State throughout each phase of
criminal prosecution best fulfills the legislative intent to create a broad grant of
immunity.” Id. at 344.
ANALYSIS
The certified question asks this Court whether the State or the defendant
bears the burden of proof with respect to demonstrating entitlement to immunity
under the Stand Your Ground law. This is an issue of statutory interpretation,
which we review de novo. See J.A.B. v. State, 25 So. 3d 554, 557 (Fla. 2010).
In analyzing this issue, we begin by reviewing the statute and this Court’s
decision in Dennis. Then, we determine whether the burden of proof was decided
as part of the Dennis holding. After concluding that the burden of proof was not a
specific holding of Dennis, we consider whether placing the burden of proof on the
defendant to prove entitlement to immunity from prosecution by a preponderance
of the evidence at a pretrial evidentiary hearing—the procedure that has been
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followed by all of the district courts of appeal after Dennis—is both appropriate
and consistent with the statutory scheme.
I. Section 776.032 & This Court’s Decision in Dennis
Florida’s Stand Your Ground law provides in pertinent part as follows:
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[4] is justified in using such force and is
immune from criminal prosecution and civil action for the use of such
force, unless the person against whom force was used is a law
4. Section 776.012, Florida Statutes (2011), provides:
A person is justified in using force, except deadly force, against
another when and to the extent that the person reasonably believes
that such conduct is necessary to defend himself or herself or another
against the other’s imminent use of unlawful force. However, a
person is justified in the use of deadly force and does not have a duty
to retreat if:
(1) He or she reasonably believes that such force is
necessary to prevent imminent death or great bodily harm
to himself or herself or another or to prevent the
imminent commission of a forcible felony; or
(2) Under those circumstances permitted pursuant to s.
776.013.
Section 776.013, Florida Statutes (2011), addresses circumstances in which
force is used against a person unlawfully and forcefully entering, or who had
unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle.
Section 776.031, Florida Statutes (2011), concerns circumstances in which
the use of non-deadly force is justified, when such force is used to prevent or
terminate another’s trespass on, or other tortious or criminal interference with,
either real property other than a dwelling or personal property, lawfully in his or
her possession or in the possession of a member of his or her immediate family or
household or of a person whose property he or she has a legal duty to protect.
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enforcement officer, as defined in s. 943.10(14), who was acting in
the performance of his or her official duties and the officer identified
himself or herself in accordance with any applicable law or the person
using force knew or reasonably should have known that the person
was a law enforcement officer. As used in this subsection, the term
“criminal prosecution” includes arresting, detaining in custody, and
charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for
investigating the use of force as described in subsection (1), but the
agency may not arrest the person for using force unless it determines
that there is probable cause that the force that was used was unlawful.
§ 776.032, Fla. Stat. (emphasis added).
This Court has explained that the “[l]egislative intent guides statutory
analysis.” Fla. Dep’t of Children & Family Servs. v. P.E., 14 So. 3d 228, 234 (Fla.
2009) (citing Knowles v. Beverly Enterprises-Fla., Inc., 898 So. 2d 1, 5 (Fla.
2004)). In discerning legislative intent, we look first to the actual language used in
the statute because “the statute’s text is the most reliable and authoritative
expression of the Legislature’s intent.” Fla. Farm Bureau Cas. Ins. Co. v. Cox, 967
So. 2d 815, 820 (Fla. 2007) (quoting V.K.E. v. State, 934 So. 2d 1276, 1286 (Fla.
2006)). Further, statutory enactments “are to be interpreted so as to accomplish
rather than defeat their purpose.” Reeves v. State, 957 So. 2d 625, 629 (Fla. 2007)
(quoting Lewis v. Mosley, 204 So. 2d 197, 201 (Fla. 1967)).
In order to effectuate legislative intent, we held in Dennis that “the plain
language of section 776.032 grants defendants a substantive right to assert
immunity from prosecution and to avoid being subjected to a trial.” 51 So. 3d at
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462. Recognizing that the statute was silent as to how to best effectuate the
defendant’s substantive right to this immunity from prosecution, we rejected the
Fourth District Court of Appeal’s decision in Dennis v. State, 17 So. 3d 305 (Fla.
4th DCA 2009), thereby also rejecting the argument advanced by the State, that the
existence of disputed issues of material fact required the denial of a defendant’s
motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4).5 Dennis,
51 So. 3d at 462.
5. Rule 3.190 provides in pertinent part:
(c) [T]he court may at any time entertain a motion to dismiss
on any of the following grounds:
....
(4) There are no material disputed facts and the
undisputed facts do not establish a prima facie case of
guilt against the defendant. The facts on which the
motion is based should be alleged specifically and the
motion sworn to.
(d) Traverse or Demurrer. The state may traverse or demur to
a motion to dismiss that alleges factual matters. Factual matters
alleged in a motion to dismiss under subdivision (c)(4) of this rule
shall be considered admitted unless specifically denied by the state in
the traverse. The court may receive evidence on any issue of fact
necessary to the decision on the motion. A motion to dismiss under
subdivision (c)(4) of this rule shall be denied if the state files a
traverse that, with specificity, denies under oath the material fact or
facts alleged in the motion to dismiss. The demurrer or traverse shall
be filed a reasonable time before the hearing on the motion to dismiss.
Fla. R. Crim. P. 3.190.
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This Court reasoned in Dennis that “treating motions to dismiss pursuant to
[the Stand Your Ground law] in the same manner as rule 3.190(c)(4) motions
would not provide criminal defendants the opportunity to establish immunity and
avoid trial that was contemplated by the Legislature.” 51 So. 3d at 462. In
addition, this Court specifically “reject[ed] the State’s contention that the pretrial
hearing on immunity in a criminal case should test merely whether the State has
probable cause to believe the defendant’s use of force was not legally justified.”
Id. at 463. As this Court explained:
Prior to the enactment of chapter 2005-27, Laws of Florida (2005),
Florida law defined certain types of justified force, see §§ 776.12,
776.031, Fla. Stat. (2004), and the Florida Rules of Criminal
Procedure mandated that a trial judge make a pretrial nonadversarial
probable cause determination either before or shortly after a defendant
was taken into custody, see Fla. R. Crim. P. 3.133 (2004). “It is a
basic rule of statutory construction that ‘the Legislature does not
intend to enact useless provisions, and courts should avoid readings
that would render part of a statute meaningless.’ ” Martinez v. State,
981 So. 2d 449, 452 (Fla. 2008) (quoting State v. Bodden, 877 So. 2d
680, 686 (Fla. 2004)). Accordingly, the grant of immunity from
“criminal prosecution” in section 776.032 must be interpreted in a
manner that provides the defendant with more protection from
prosecution for a justified use of force than the probable cause
determination previously provided to the defendant by rule.
Id.
Regarding the applicable procedure for claiming Stand Your Ground
immunity, this Court determined that “Florida Rule of Criminal Procedure
3.190(b)—rather than rule 3.190(c)(4)—provides the appropriate procedural
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vehicle for the consideration of a claim of section 776.032 immunity.” Id. at 462.
This Court thus rejected the Fourth District’s view that all the State had to do to
defeat a motion to dismiss was to demonstrate, under a rule 3.190(d) traverse or
demurrer, the existence of a factual dispute as to whether the defendant’s use of
force was justified. Id. at 458. Instead, we agreed with the First District’s
approach in Peterson that provided for an evidentiary hearing during which the
trial court would determine whether the defendant is entitled to statutory immunity.
Id. at 463. We stated as follows:
We conclude that where a criminal defendant files a motion to
dismiss on the basis of section 776.032, the trial court should decide
the factual question of the applicability of the statutory immunity.
Accordingly, we disapprove the Fourth District’s reasoning in Dennis
and approve the reasoning of Peterson on that issue.
Id. at 458.
The burden of proof was discussed in both initial and supplemental briefing
in Dennis, and the defendant, who was represented by the Public Defender’s
Office, urged that we adopt the remedy of an evidentiary hearing where the
defendant proves by a preponderance of the evidence that the charges should be
dismissed because he or she is entitled to Stand Your Ground immunity. This
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position was confirmed by counsel for the defendant during oral argument in
Dennis.6
Yet, the only mention of the burden of proof in the Dennis opinion is within
the following extensive excerpt from Peterson, in which this Court recited the
district court’s holding:
We now hold that when immunity under this law is properly
raised by a defendant, the trial court must decide the matter by
confronting and weighing only factual disputes. The court may not
deny a motion simply because factual disputes exist. Here, the trial
court did what was required. Petitioner is not precluded from
submitting the matter to the jury as an affirmative defense in his
criminal trial.
In the absence of a procedure for handling these matters, we
find guidance from the Colorado Supreme Court’s decision in People
v. Guenther, 740 P.2d 971 (Colo. 1987). In that case, the court
decided that Colorado’s similar immunity statute authorized a trial
court to dismiss a criminal prosecution at the pretrial stage and did not
merely create an affirmative defense for adjudication at trial. Id. at
976. The court further determined that a defendant raising the
immunity would have the burden of establishing the factual
prerequisites to the immunity claim by a preponderance of the
evidence. Id. at 980. The court imposed the same burden of proof as
it would in motions for postconviction relief or motions to suppress.
Id.
6. At oral argument, counsel representing the defendant in Dennis stated of
the pretrial evidentiary hearing: “It’s an opportunity for the defendant, and the
burden is on the defendant at this point to prove why he is entitled to immunity. . . .
[W]e’re willing to assume that the burden should be on the defendant. It seems
proper that the defendant is the one seeking this special privilege, and it would
seem difficult for the State to prove that he’s not entitled to it, so the burden should
be on him to prove.” Oral Argument at 1:28:38, Dennis, 51 So. 3d 456 (No. SC09-
941), available at http://wfsu.org/gavel2gavel/viewcase.php?eid=131 (Oct. 6,
2010).
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Likewise, we hold that a defendant may raise the question of
statutory immunity pretrial and, when such a claim is raised, the trial
court must determine whether the defendant has shown by a
preponderance of the evidence that the immunity attaches. As noted
by the trial court, courts have imposed a similar burden for motions
challenging the voluntariness of a confession. See, e.g., McDole v.
State, 283 So. 2d 553, 554 (Fla. 1973). We reject any suggestion that
the procedure established by rule 3.190(c) should control so as to
require denial of a motion whenever a material issue of fact appears.
51 So. 3d at 459-60 (emphasis added) (quoting Peterson, 983 So. 2d at 29-30).
After analyzing the appropriate procedure for pretrial claims of Stand Your
Ground immunity, we concluded that the procedure set forth in Peterson “best
effectuates the intent of the Legislature.” Id. at 463. However, although this Court
adopted the Peterson procedure and quoted the Peterson court’s discussion of the
burden of proof, an analysis of the burden of proof was not an explicit part of our
direct holding in Dennis. Rather, the issue this Court resolved was whether the
defendant was entitled to an evidentiary hearing on the motion to dismiss. Thus,
because this Court in Dennis did not directly address the burden of proof, we
proceed to analyze and decide that issue.
II. The Burden of Proof
After our decision in Dennis, each of the district courts, in reliance on either
Peterson or Dennis, have placed the burden of proof on the defendant to establish
entitlement to immunity by a preponderance of the evidence at the pretrial
evidentiary hearing. See, e.g., Mederos v. State, 102 So. 3d 7, 11 (Fla. 1st DCA
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2012); State v. Gallo, 76 So. 3d 407, 409 & n.2 (Fla. 2d DCA 2011); State v. Vino,
100 So. 3d 716, 717 (Fla. 3d DCA 2012); Joseph v. State, 103 So. 3d 227, 230
(Fla. 4th DCA 2012); Bretherick, 135 So. 3d at 340. Even before this Court’s
decision in Dennis, all of Florida’s district courts other than the Fourth District had
addressed this issue and had explicitly agreed with the First District in Peterson to
require a pretrial evidentiary hearing, in which the defendant has the burden to
prove entitlement to Stand Your Ground immunity by a preponderance of the
evidence. See McDaniel v. State, 24 So. 3d 654, 656 (Fla. 2d DCA 2009); State v.
Yaqubie, 51 So. 3d 474, 475 (Fla. 3d DCA 2010); Gray v. State, 13 So. 3d 114,
115 (Fla. 5th DCA 2009).
We now agree with all of the district courts and hold that the defendant bears
the burden of proof, by a preponderance of the evidence, to demonstrate
entitlement to Stand Your Ground immunity at the pretrial evidentiary hearing.
Numerous reasons support our conclusion.
First, in providing for the Stand Your Ground immunity, the Legislature did
not confer upon every person in Florida blanket immunity from criminal
prosecution, but instead provided immunity only to those whose use of force was
justified, as specified by statute. See § 776.032, Fla. Stat. (providing that the use
of force is justified only when used as permitted by sections 776.012, 776.013, or
776.031). Although the Legislature did not set forth a procedure to test a
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defendant’s claim of statutory immunity, the procedure this Court adopted in
Dennis gave effect to the Legislature’s intent to provide an eligible defendant with
statutory protection extending beyond the ability to assert at trial the affirmative
defense of self-defense. The resulting procedure allows a defendant to establish, at
a pretrial evidentiary hearing, that he or she acted in accordance with the statutory
requirements and is thus entitled to the immunity, in order to avoid criminal
prosecution.
Second, as the State points out, no court in this country has required, at a
pretrial evidentiary hearing, the prosecution to disprove beyond a reasonable doubt
that the use of force by a defendant was justified. The highest courts in three
states—Colorado, Georgia, and South Carolina—agree with a procedure similar to
that described in Peterson, as approved by Dennis. See State v. Duncan, 709
S.E.2d 662, 665 (S.C. 2011); Bunn v. State, 667 S.E.2d 605, 608 (Ga. 2008);
People v. Guenther, 740 P.2d 971, 972 (Colo. 1987). These courts have adopted a
procedure in which the defendant bears the burden of proof, by a preponderance of
the evidence at a pretrial evidentiary hearing, in the context of their analogous
immunity laws.
Bretherick’s reliance on cases from Kentucky and Kansas is misplaced
because neither of those states has adopted a procedure in which the burden of
proof is on the prosecution beyond a reasonable doubt at the pretrial stage. In
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Rodgers v. Commonwealth, 285 S.W.3d 740, 755 (Ky. 2009), the Supreme Court
of Kentucky explicitly rejected the defendant’s argument that he was entitled to a
pretrial evidentiary hearing to determine his entitlement to immunity. Instead, the
Supreme Court of Kentucky held that the prosecution had to establish only that
there was probable cause that the defendant’s use of force was not legally justified.
Id. at 754. This Court rejected this procedure in Dennis as inconsistent with the
legislative intent in Florida to provide greater protection from prosecution to
defendants who have used justifiable force. 51 So. 3d at 462.
The Supreme Court of Kansas similarly concluded that the prosecution
merely had to establish probable cause that the defendant’s use of force was
unlawful, but declined to address whether the defendant was entitled to a pretrial
evidentiary hearing. See State v. Ultreras, 295 P.3d 1020, 1031 (Kan. 2013). In
reaching its decision, the Supreme Court of Kansas specifically distinguished the
Kansas statute from the Florida statute and concluded that the Rodgers rationale
from Kentucky was more consistent with the Kansas statute than the decisions
from Florida and Colorado. Id. at 1030-31. Because the Florida Legislature
intended to foster more protection from prosecution, Florida’s statute is
distinguishable, and the decisions from Kansas and Kentucky therefore do not
support Bretherick’s position.
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Third, placing the burden of proof on the defendant is consistent with how
other types of motions to dismiss are handled under Florida Rule of Criminal
Procedure 3.190(b). Rule 3.190(b) sets out procedures for the filing and
consideration of a motion to dismiss in a criminal proceeding. As then-Chief
Judge Gross explained in his special concurrence in Govoni v. State, 17 So. 3d 809
(Fla. 4th DCA 2009), quashed, 67 So. 3d 1048 (Fla. 2011), the procedure set forth
in rule 3.190(b) is well-suited for motions to dismiss based on statutory immunity
and is consistent with jurisprudence that requires the defendant, who is seeking the
immunity, to bear the burden of proof by a preponderance of the evidence:
A motion to dismiss under rule 3.190(c)(4) is not well-suited to
resolve a claim of “true immunity” from prosecution. In most cases,
where a prosecutor has elected to file charges, there will be a factual
dispute about whether section 776.032 immunity applies. Rule
3.190(c)(4) is structured to avoid a judge’s resolution of factual
disputes, leaving those matters to the finder of fact at a trial. A rule
3.190(c)(4) motion to dismiss is similar to a motion for summary
judgment in a civil case, and as such “[b]oth should be granted
sparingly.” State v. Bonebright, 742 So. 2d 290, 291 (Fla. 1st DCA
1998); see State v. Kalogeropolous, 758 So. 2d 110, 111 (Fla. 2000).
Yet, forcing disputed immunity claims to trial undercuts the concept
of immunity adopted by the legislature.
Rule 3.190 allows for contested hearings on motions to dismiss.
The rule does not limit the grounds upon which a motion to dismiss
may be filed. . . . The rule uses the terms “defenses” and “defense”
broadly, so that it encompasses a claim to section 776.032 immunity.
The four grounds specified in rule 3.190(c)(1)-(4)—that the defendant
has been pardoned, previously been placed in jeopardy, previously
been granted immunity, or that the undisputed facts do not establish a
prima facie case of guilt—are not the exclusive grounds allowed
under the rule. Rather, the rule states that those four grounds “may at
any time [be] entertain[ed]” by the court. Rule 3.190(d) expressly
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contemplates hearings to resolve disputed issues of fact when it says,
“[t]he court may receive evidence on any issue of fact necessary to the
decision on the motion.”
. . . The first district held that “when immunity under this law
is properly raised by a defendant,” the trial court “may not deny a
motion [to dismiss] simply because factual disputes exist.” Id. Faced
with a factual conflict, a court must hold a hearing to confront and
weigh the factual disputes, so that it can “determine whether the
defendant has shown by a preponderance of the evidence that the
immunity attaches.” Id. Peterson’s procedure for a contested
evidentiary hearing fits within the framework of rule 3.190.
Holding a hearing on a section 776.032 immunity claim is not a
oddity in the criminal law. A court performs a similar function when
it resolves a claim involving a different type of immunity under rule
3.190(c)(3), a claim that prosecution is barred because the defendant
has transactional immunity. See, e.g., State v. Toogood, 349 So. 2d
1203 (Fla. 2d DCA 1977) (involving statutory transactional immunity
under section 914.04, Florida Statutes (1975)). When a defendant
moves to dismiss under rule 3.190(c)(3), he must offer evidence to
support his motion. See State v. Montgomery, 310 So. 2d 440 (Fla.
3d DCA 1975). Also, courts resolve disputed fact issues when
considering motions to suppress under subsections 3.190(h) and (i).
The existing rule can thus embrace the procedure established by the
first district in Peterson.
17 So. 3d at 810-11 (Gross, C.J., concurring specially) (alterations in original). As
explained by Judge Gross, the procedures for pretrial motions to dismiss, based on
this Court’s precedent, all require the defendant to offer the evidence in support of
the motion, rather than placing the burden on the State.
Fourth, to place the burden on the State to prove, beyond a reasonable doubt,
that the defendant was not entitled to immunity would require the State to establish
the same degree of proof twice—once pretrial and again at trial. This would
essentially result in two full-blown trials: one before the trial judge and then
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another before the jury. Additionally, the pretrial evidentiary issue focuses not on
whether the defendant has committed the crime with which he or she is charged,
but rather on whether the defendant was justified in “standing his or her ground.”
As the Colorado Supreme Court has recognized, “the accused presumably has a
greater knowledge of the existence or nonexistence of the facts which would call
into play the protective shield of the statute and, under these circumstances, should
be in a better position than the prosecution to establish the existence of those
statutory conditions which entitle him to immunity.” Guenther, 740 P.2d at 980.
Placing the pretrial burden on the State beyond a reasonable doubt would
provide no disincentive for a defendant to file a motion to dismiss in order to
obtain a complete preview of the State’s entire case, including its rebuttal of the
defendant’s potentially meritless argument—which may not be supported by any
evidence—that the use of force was justified. If, at the pretrial stage of litigation,
the State did not possess all the evidence to refute the alleged justifications for a
defendant’s use of force, the defendant would be found immune from prosecution
because the State could not disprove the justifications for the use of force beyond a
reasonable doubt. The State has aptly described the result: “a process fraught with
potential for abuse.”
Requiring the State to prove its case twice would also cause a tremendous
expenditure of time and resources. Undoubtedly, interests in practicality, expense,
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and judicial economy do not outweigh the defendant’s right to a fair determination
of guilt or innocence. See State v. Williams, 453 So. 2d 824, 825 (Fla. 1984).
However, the defendant’s opportunity for a fair determination of guilt or innocence
is not diminished by placing upon him or her the burden of proof at the pretrial
stage, as the State still has to prove its case and all of the elements of the crime
beyond a reasonable doubt at trial.
Finally, we reject Bretherick’s argument that the standard for determining
immunity for claims brought under 42 U.S.C. § 1983 should be applied in the
context of immunity under the Stand Your Ground law. This argument lacks
merit. Bretherick has not presented this Court with a single case in which the
standard for determining immunity from claims brought under 42 U.S.C. § 1983
was applied in the context of a criminal defendant seeking immunity from
prosecution in state court.
The considerations involved in determining immunity from suit in the
context of § 1983 for law enforcement officials are different from those involved in
evaluating claims of immunity from prosecution under the Stand Your Ground
law. The two statutes concern different actors operating in completely different
capacities and were enacted by different legislative bodies based upon vastly
different policy rationales. See, e.g., Wyatt v. Cole, 504 U.S. 158, 167 (1992)
(noting that “special policy concerns” mandating qualified immunity for
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government officials under § 1983 included the need to “preserve their ability to
serve the public good or to ensure that talented candidates were not deterred by the
threat of damages suits from entering public service”). Even in cases involving
§ 1983 immunity, however, the individuals claiming immunity carry the initial
burden of establishing that they were qualified for immunity at the time of the
incident. See, e.g., Gentile v. Bauder, 718 So. 2d 781, 784 (Fla. 1998) (explaining
that a government official claiming qualified immunity has the initial burden of
demonstrating that he was acting within his discretionary authority before the
burden shifts to the plaintiff).
In conclusion, although the Legislature has not explicitly stated which party
should bear the burden of proof in establishing whether a defendant is entitled to
immunity under the Stand Your Ground law, there is nothing in the statutory
scheme, in our prior jurisprudence, or in jurisprudence throughout the country that
would dictate placing the burden at the pretrial evidentiary hearing on the State to
disprove the claim of immunity beyond a reasonable doubt. Not only does the
defendant have the opportunity to challenge the initial probable cause
determination for the arrest, he or she has an additional opportunity to avoid a trial
altogether by proving entitlement to immunity at the pretrial evidentiary hearing
and, if the immunity is denied, to challenge the trial court’s denial of the motion to
dismiss via a petition for writ of prohibition to the appellate court. These
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procedures are available to the defendant who is unsuccessful at each stage of
establishing immunity, before the trial has even begun. Then, if the motion to
dismiss and the petition for writ of prohibition are denied, as in Bretherick’s case,
the defendant has yet another opportunity to claim self-defense as an affirmative
defense at trial. Thus, we effectuate the legislative intent to provide this immunity
to eligible defendants while not unduly hampering the State’s ability to prosecute
violations of Florida’s legislatively enacted criminal law.7
CONCLUSION
We conclude that placing the burden of proof on the defendant to establish
entitlement to Stand Your Ground immunity by a preponderance of the evidence at
the pretrial evidentiary hearing, rather than on the State to prove beyond a
reasonable doubt that the defendant’s use of force was not justified, is consistent
with this Court’s precedent and gives effect to the legislative intent. While we
recognize that the Stand Your Ground law is intended to be an immunity from
prosecution as opposed to just an affirmative defense, the immunity is not a
7. In its amicus curiae brief, Florida Carry argues that requiring the
defendant to bear any burden in a pretrial hearing is unconstitutional. This issue is
not properly before us because it was not raised by Bretherick. An amicus curiae
is not permitted to raise new issues that were not initially raised by the parties. See
Riechmann v. State, 966 So. 2d 298, 304 n.8 (Fla. 2007).
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blanket immunity, but rather, requires the establishment that the use of force was
legally justified.
Accordingly, for the reasons we have explained, we answer the certified
question in the negative, approve the decision of the Fifth District, and remand this
case for proceedings consistent with this opinion.8
It is so ordered.
LABARGA, C.J., and QUINCE and PERRY, JJ., concur.
LEWIS, J., concurs in result.
CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
CANADY, J., dissenting.
I would answer the certified question in the affirmative, quash the Fifth
District’s decision, and disapprove the other decisions that have held that a
defendant has the burden of establishing entitlement to Stand Your Ground
immunity in order to avoid trial. Accordingly, I dissent.
As the majority recognizes, our core holding in Dennis v. State, 51 So. 3d
456, 458 (Fla. 2010), was that “where a criminal defendant files a motion to
8. We decline to reweigh the evidence presented at the pretrial evidentiary
hearing or revisit the trial court’s and Fifth District’s determinations that in this
case the defendant failed to successfully demonstrate by a preponderance of the
evidence that he was the victim of a forcible felony or that his use of force was
justified.
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dismiss on the basis of section 776.032, the trial court should decide the factual
question of the applicability of the statutory immunity.” We reached this
conclusion because “the plain language of section 776.032 grants defendants a
substantive right to assert immunity from prosecution and to avoid being subjected
to a trial.” Id. at 462.
The majority’s decision here, however, fails to recognize the essential nature
of the factual question that the trial court must decide. The factual question raised
by the assertion of Stand Your Ground immunity in a pretrial evidentiary hearing is
the same as the factual question raised by a Stand Your Ground defense presented
at trial: whether the evidence establishes beyond a reasonable doubt that the
defendant’s conduct was not justified under the governing statutory standard. The
State does not dispute that a defendant presenting a Stand Your Ground defense
can only be convicted if the State proves beyond a reasonable doubt that the
defense does not apply. See, e.g., Alexander v. State, 121 So. 3d 1185, 1188 (Fla.
1st DCA 2013); Leasure v. State, 105 So. 3d 5, 13 (Fla. 2d DCA 2012); Montijo v.
State, 61 So. 3d 424, 427 (Fla. 5th DCA 2011); see also Fla. Std. Jury Inst. (Crim.)
3.6(f)-(g). By imposing the burden of proof on the defendant at the pretrial
evidentiary hearing, the majority substantially curtails the benefit of the immunity
from trial conferred by the Legislature under the Stand Your Ground law. There is
no reason to believe that the Legislature intended for a defendant to be denied
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immunity and subjected to trial when that defendant would be entitled to acquittal
at trial on the basis of a Stand Your Ground defense. But the majority’s decision
here guarantees that certain defendants who would be entitled to acquittal at trial
will nonetheless be deprived of immunity from trial.
The majority’s argument that the burden should be placed on the defendant
because it is easier for a defendant to prove entitlement to immunity than it is for
the State to disprove entitlement to immunity has no more force in the context of a
pretrial evidentiary hearing than it does in the context of a trial, where it admittedly
has no application. That argument has no basis in the text of the Stand Your
Ground law. Similarly, the majority’s concern that placing the burden of proof on
the State in the pretrial evidentiary hearing will potentially result in “two full-
blown trials”—by no means a specious concern—cannot justify curtailing the
immunity from trial under the Stand Your Ground law for those individuals whose
use of force or threat of force is legally justified under the governing statutory
standard. Practical problems raised by the Stand Your Ground law are a matter for
the Legislature to consider and resolve.
The State has conceded that if the certified question is answered in the
affirmative, this case should be remanded to the trial court for reconsideration in
light of the appropriate burden of proof. Having concluded that the certified
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question should be answered in the affirmative, I would therefore quash the
decision on review and remand the case for reconsideration by the trial court.
POLSTON, J., concurs.
Application for Review of the Decision of the District Court of Appeal - Certified
Great Public Importance
Fifth District - Case No. 5D12-3840
(Osceola County)
Eric J. Friday of Fletcher & Phillips, Jacksonville, Florida; and Dawn L. Drellos-
Thompson, Naples, Florida,
for Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Wesley Harold Heidt,
Bureau Chief, Criminal Appeals, and Kristen Lynn Davenport, Assistant Attorney
General, Daytona Beach, Florida,
for Respondent
John C. Frazer, National Rifle Association of America, Fairfax, Virginia; and
Jason Brent Gonzalez of Shutts & Bowen LLP, Tallahassee, Florida,
for Amicus Curiae National Rifle Association of America
Lesley Rickard McKinney of McKinney, Wilkes, & Mee, PLLC, Jacksonville,
Florida,
for Amicus Curiae Florida Carry, Inc.
Arthur Ivan Jacobs of Jacobs Sholz & Associates, LLC, Fernandina Beach,
Florida,
for Amicus Curiae the Florida Prosecuting Attorneys Association, Inc.
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