DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JEREMY SCOTT BETHEA,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D21-98
[June 2, 2021]
Appeal from the County Court for the Fifteenth Judicial Circuit, Palm
Beach County; Debra Moses Stephens, Judge; L.T. Case Nos. 50-2018-
MM-010714-AXXX-MB and 50-2019-AP-000142-AXXX-MB.
Carey Haughwout, Public Defender, and Logan T. Mohs, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley B. Moody, Attorney General, Tallahassee, and Paul Patti, III,
Assistant Attorney General, West Palm Beach, for appellee.
GROSS, J.
After a jury trial, Jeremy Bethea was convicted of battery, in violation
of section 784.03(1), Florida Statutes (2018). The trial court converted
that conviction into a domestic violence conviction. See §§ 741.28,
741.283, Fla. Stat. (2018).
We reverse the domestic violence designation of the conviction because
that issue was not submitted to the jury. We also write to address
appellant’s challenge to a Stand Your Ground immunity hearing.
The Trial Court’s Designation of the Battery Conviction as One of
Domestic Violence Was Improper Since Fact Issues Pertaining to
the Designation Were Not Submitted to the Jury
Appellant was charged with battery (domestic) in violation of sections
784.03(1) and 741.283, Florida Statutes (2018). Section 741.283
establishes minimum terms of imprisonment for those “adjudicated guilty
of a crime of domestic violence, as defined in s. 741.28.” The information
described the victim as “a family or household member of [Appellant].” See
§ 741.28, Fla. Stat. (2018).
The trial court’s instruction to the jury was as follows:
To prove the crime of battery, the State must prove the
following element beyond a reasonable doubt:
[Appellant] actually and intentionally touched or struck [the
victim] against her will.
An intentional touching or striking includes situations where
a defendant knows that a touch or strike is substantially
certain to result from his or her act.
The jury found Appellant guilty of battery as charged.
After the verdict and the dismissal of the jury, the trial court found that
the battery was a crime of domestic violence. The court sentenced
Appellant to, among other things, 12 months of probation and to serve
eight long weekends in the Palm Beach County Jail. The written judgment
of conviction contains a checked box, which designates the conviction as
one of domestic violence.
Appellant moved to correct four sentencing errors. See Fla. R. Crim. P.
3.800(b)(2). Appellant argued, among other things, that the judgment and
probation order should not have a checkmark indicating a finding of
domestic violence. Appellant moved the court to remove the domestic
designation in the probation order and in the judgment. The court granted
the motion to correct three errors, but denied the part of the motion
directed at the portion of the order characterizing the battery as one of
domestic violence.
Alleyne v. United States, 570 U.S. 99 (2013), applies to the domestic
violence designation in this case. In Alleyne, the Supreme Court held
Any fact that, by law, increases the penalty for a crime is an
“element” that must be submitted to the jury and found
beyond a reasonable doubt. Mandatory minimum sentences
increase the penalty for a crime. It follows, then, that any fact
that increases the mandatory minimum is an “element” that
must be submitted to the jury.
Id. at 103 (internal citation omitted).
2
A domestic violence designation under section 741.28(2) triggers
mandatory minimum sentences under section 741.283. In this case, the
facts necessary to a “domestic violence” designation are (1) a battery, (2)
where the victim is a “family or household member” of the defendant, and
(3) the battery “result[ed] in physical injury or death” of the victim. §
741.28(2), Fla. Stat. (2018). Section 741.283(1)(a) describes the
mandatory minimum sentences for first, second, and third or subsequent
domestic violence offenses and requires that the defendant has
“intentionally caused bodily harm to another person.”
Here, the jury was charged only on misdemeanor battery. It was not
asked to make findings regarding bodily harm or injury of the victim or the
victim’s status as a “family or household member” of Appellant. Under
Alleyne, the judge was precluded from making the domestic violence
finding on her own.
Applying Gaymon v. State, 288 So. 3d 1087 (Fla. 2020), we remand for
resentencing with instructions to empanel a jury to make the “domestic
violence” determination, if the State seeks that finding in this case. If the
State no longer seeks that finding, the trial court shall enter an amended
judgment of conviction and probation order without the domestic violence
designation.
The Burden of Proof Error at the Stand Your Ground Immunity
Hearing Was Cured by Appellant’s Conviction at Trial, Where His
Guilt Was Established Beyond a Reasonable Doubt
Prior to trial, Appellant filed an amended motion to dismiss based on
Florida’s Stand Your Ground immunity law. Relying on Jefferson v. State,
264 So. 3d 1019 (Fla. 2d DCA 2018), Appellant argued that a defendant
only needs to “simply allege a facially sufficient prima facie claim of
justifiable use of force under chapter 776 in a motion to dismiss,” and that
the defendant is not required to present physical evidence or testimony to
support the motion. The trial court concluded that the defense would be
required to present some evidence. The defense declined to call any
witnesses. The trial court denied Appellant’s amended motion to dismiss.
Well after the trial in this case, we decided State v. Cassaday, 46 Fla.
L. Weekly D544, 2021 WL 926552, at *1 (Fla. 4th DCA Mar. 10, 2021).
There, we agreed with the Second District’s analysis in Jefferson that
“section 776.032(4) merely requires that ‘a prima facie claim of self-defense
immunity from criminal prosecution . . . be[ ] raised by the defendant at a
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pretrial immunity hearing,’ not proven.” Id. (quoting Jefferson, 264 So. 3d
at 1027).
“[T]here is no evidentiary burden upon the person seeking Stand Your
Ground immunity.” Id. (internal quotation marks omitted). “Instead, a
defendant must ‘simply allege a facially sufficient prima facie claim of
justifiable use of force under chapter 776 in a motion to dismiss filed under
rule 3.190(b) and present argument in support of that motion at a pretrial
immunity hearing.’” Id. (quoting Jefferson, 264 So. 3d at 1028–29). This
court outlined the procedure set forth in Jefferson as follows:
In sum, procedurally, a claim for immunity from criminal
prosecution pursuant to section 736.032(4) must first be
raised . . . 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.
Id. (quoting Jefferson, 264 So. 3d at 1029).
When a trial court errs by placing the initial burden of proof on the
defendant during a Stand Your Ground immunity pretrial hearing, that
error can be cured by “the State establish[ing] the defendant’s guilt at trial
by proof beyond a reasonable doubt” because “[t]he State’s trial burden of
overcoming the defendant’s self-defense claim by proof beyond reasonable
doubt is heavier than its pretrial burden of overcoming the defendant’s
self-defense immunity claim by clear and convincing evidence.” Little v.
State, 302 So. 3d 396, 407 (Fla. 4th DCA 2020) (quoting Boston v. State,
296 So. 3d 580, 583 (Fla. 1st DCA 2020), rev. granted, SC20-1164, 2020
WL 5946341 (Fla. Oct. 7, 2020)); contra Nelson v. State, 295 So. 3d 307,
307 (Fla. 2d DCA 2020) (holding that because the amended section
776.032 “shift[ed] the burden of proof from the defendant to the State,”
the case is reversed and remanded to the trial court for a new immunity
hearing). 1
1This court aligned itself with the First District and certified conflict with Nelson.
The Florida Supreme Court accepted jurisdiction in Boston and an oral argument
was held on May 5, 2021.
4
Based on Little, the trial court’s error was cured by the State proving
Appellant’s guilt beyond a reasonable doubt at trial, and “there is no need
to remand this case for another hearing.” 302 So. 3d at 407. We withhold
issuance of the mandate in this case until 30 days after the Florida
Supreme Court resolves Boston’s conflict with Nelson, or otherwise
disposes of Boston.
We have considered Appellant’s other points on appeal. We conclude
that there was no fundamental error regarding the jury instruction and
that the text message from Appellant’s phone was sufficiently
authenticated.
Affirmed in part, reversed in part, and remanded with instructions.
GERBER and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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