WASHINGTON v. STATE (2020)

On Remand From Florida Supreme Court

We reconsider on remand our prior opinion in this case, which the Florida Supreme Court quashed following its decision in Love v. State, 286 So. 3d 177 (Fla. 2019). We now affirm in all respects and write only to address the sole issue presented on remand.

In 2014, Darnell Perkins Washington was charged with attempted second-degree murder, following a shooting that took place during an altercation with his mother's boyfriend. Washington claimed that he acted in self-defense and moved to dismiss the charge under Florida's Stand-Your-Ground law, section 776.032, Florida Statutes. The trial court denied the motion, concluding that Washington failed to meet his burden of proving that he was entitled to immunity from prosecution. The case went to trial, and Washington was convicted of the lesser crime of aggravated assault with a firearm.

Washington argued on appeal that he is entitled to a new Stand-Your-Ground immunity hearing based on an intervening change in the law. At the time of Washington's immunity hearing, Florida case law interpreting section 776.032 required that Washington prove entitlement to immunity by a preponderance of the evidence. See Bretherick v. State, 170 So. 3d 766, 775 (Fla. 2015). While this appeal was pending, the Florida Legislature amended section 776.032 to change both the burden and quantum of proof required for establishing entitlement to immunity. See Ch. 2017-72, §§ 1–2, Laws of Fla. Now, once a defendant makes a prima facie claim of immunity, the State must prove by clear and convincing evidence that the defendant is not entitled to immunity. § 776.032(4), Fla. Stat. (2017).

We previously granted Washington relief based on our precedent holding that the 2017 amendment to section 776.032 is procedural in nature and retroactive in application to pending cases, including those on appeal. See, e.g., Commander v. State, 246 So. 3d 1303 (Fla. 1st DCA 2018).

Based on Love, we now conclude that Washington is not entitled to a new immunity hearing. In Love, the supreme court agreed that the amended statute is a procedural change in the law but clarified that the new procedure “applies to all Stand Your Ground immunity hearings conducted on or after the statute's effective date.” 286 So. 3d at 190 (emphasis added). Because Washington's immunity hearing occurred before the amended statute's effective date, the trial court was correct to conduct the hearing under the standard announced in Bretherick.

Affirmed.

Ray, C.J.

Kelsey and Jay, JJ., concur.