SCHKRIOBA v. STATE (2018)

Petitioner seeks to prohibit his continued prosecution in the underlying matter following the trial court's denial of his motion to dismiss based upon the statutory immunity provided by Florida's Stand Your Ground Law, section 776.032, Florida Statutes (2017). Petitioner argues that when hearing evidence and ruling on his motion, the trial court erred by failing to apply the 2017 amendment to the statute, which requires the State to disprove his facially sufficient claim of self-defense immunity by clear and convincing evidence. He also argues that the trial court erred in determining that he is not entitled to immunity based upon the facts established at his pretrial immunity hearing. Because the trial court granted the State's motion to apply the version of section 776.032 that existed at the time of the charged offenses and the hearing on the petitioner's motion occurred pursuant to that ruling, the issue of petitioner's entitlement to immunity has not been resolved using the correct burden of proof. Therefore, we deny the petition without prejudice. Petitioner may renew his motion to dismiss based on stand your ground immunity and seek a new hearing in accordance with our decision in Martin v. State, 43 Fla. L. Weekly D1016 (Fla. 2d DCA May 4, 2018).

BY ORDER OF THE COURT:

CASANUEVA, KELLY, and MORRIS, JJ., Concur.