May 23, 2018
TALLAHASSEE — Amid requests for the Florida Supreme Court to wade into the issue, a South Florida appeals court Wednesday ruled against a defendant in one in a series of cases about how to carry out a controversial 2017 change to the state’s “stand your ground” self-defense law.
The ruling by a panel of the 3rd District Court of Appeal was the third time this month that appellate courts have grappled with the issue of the 2017 change — with courts coming to different conclusions.
The change shifted a key burden of proof from defendants to prosecutors in “stand your ground” cases, and the issue in the appeals is whether that change should apply retroactively to defendants whose cases were pending before the 2017 law passed.
The 3rd District Court of Appeal in the case Wednesday of defendant Justin Bailey and in a May 11 decision involving defendant Tashara Love sided with prosecutors in finding that the change should not apply retroactively. But the 2nd District Court of Appeal, in a May 4 ruling in a Hillsborough County case, said the change is retroactive, a decision that could help defendants arguing that they acted in self-defense.
Love’s attorneys quickly filed a brief last week asking the Florida Supreme Court to take up the issue.
“This case presents an issue of statewide importance impacting countless criminal prosecutions: whether the 2017 amendment to the Stand Your Ground law applies to all pending cases or only those arising after its enactment,” Love’s attorneys wrote in the brief.
The “stand your ground” law says people are justified in using deadly force and do not have a “duty to retreat” if they believe it is necessary to prevent death or great bodily harm. When the defense is successfully raised in pre-trial hearings, defendants are granted immunity from prosecution.
Before the 2017 change, the Florida Supreme Court had ruled defendants had the burden of proof in pre-trial hearings to show they should be shielded from prosecution. With backing from groups such as the National Rifle Association, the 2017 change shifted the burden from defendants to prosecutors to prove whether self-defense claims are justified.
The ruling Wednesday by the 3rd District Court of Appeal, which hears issues from Miami-Dade and Monroe counties, gave few details of the Bailey case. But it said a lower court in December 2016 rejected Bailey’s argument that he should be shielded from prosecution because of the “stand your ground” law.
“Under the version of the statute existing on the date of the offense (and at the time of the evidentiary hearing), Bailey shouldered the burden of proof, requiring him to establish his entitlement to statutory immunity by a preponderance of the evidence,” said Wednesday’s ruling by appeals-court judges Kevin Emas, Thomas Logue and Norma Lindsey. “The trial court concluded in its order that Bailey ‘failed to prove by the preponderance of the evidence that he is immune from prosecution.’ ”
As Bailey appealed the ruling, the Legislature and Gov. Rick Scott shifted the burden of proof to prosecutors. Bailey’s attorneys argued that the change should be applied to his case. But in turning down Bailey, the panel Wednesday pointed to the May 11 ruling in the Love case, which stemmed from a 2015 shooting during an altercation outside a Miami-Dade County nightclub.
“Following our precedent in Love, we therefore hold that the June 9, 2017 amendment does not apply to Bailey’s case, and Bailey is not entitled to a new evidentiary hearing on that basis,” Wednesday’s ruling said.
But in the Hillsborough County case earlier in the month, a panel of the 2nd District Court of Appeal said the burden-of-proof change should apply retroactively to Tymothy Ray Martin, who was convicted of felony battery in a 2016 altercation involving his girlfriend. Martin had sought to use the “stand your ground” law to be shielded from prosecution, but a judge denied his request in a pre-trial hearing.
Martin appealed his conviction, and the appeal was pending when the Legislature and Scott made the change.
The 2nd District Court of Appeal and the 3rd District Court of Appeal have asked the Supreme Court to resolve the retroactivity issue — a move known as “certifying” a question to the Supreme Court.
NEWS SERVICE OF FLORIDA