TATE v. STATE (2019)

Appellant, Cory A. Tate, appeals his judgment and sentence following an adverse jury verdict, arguing that the 2017 amendment to the “Stand Your Ground” law (codified at section 776.032(4), Florida Statutes) that shifts the burden of proof from the defendant to the prosecution, should be applied to his case, entitling him to a new pretrial immunity hearing. Based on this court's recent decision in Fuller v. State, 257 So. 3d 521 (Fla. 5th DCA 2018), we agree that Appellant is entitled to a new immunity hearing. We therefore reverse Appellant's convictions and remand for the trial court to conduct a new “Stand Your Ground” immunity hearing where the State will bear the burden of proof. See § 776.032(4), Fla. Stat. (2017). If, after the hearing, the trial court concludes that Appellant is entitled to immunity, it shall enter an order to that effect and dismiss the information with prejudice. If, on the other hand, the trial court determines that Appellant is not entitled to immunity from prosecution, it shall enter an order containing its findings and reinstate Appellant's convictions.

We again certify express and direct conflict with the decision of the third district in Love v. State, 247 So. 3d 609 (Fla. 3d DCA), review granted, No. SC18-747, 2018 WL 3147946 (Fla. June 26, 2018), and the decisions of the fourth district in Langel v. State, 255 So. 3d 359, 361 (Fla. 4th DCA 2018), and Hight v. State, 253 So. 3d 1137, 1143 (Fla. 4th DCA 2018).

REVERSED AND REMANDED; CONFLICT RE-CERTIFIED.

PER CURIAM.

EDWARDS, EISNAUGLE and SASSO, JJ., concur.