SULLIVAN v. STATE (2020)

On remand from the Florida Supreme Court, we reconsider Gabryl Sullivan's appeal from his judgment and sentence in light of Love v. State, 286 So. 3d 177 (Fla. 2019). We now conclude that Sullivan is not entitled to relief and affirm his judgment and sentence for aggravated battery causing great bodily harm with a deadly weapon.

In June 2016, during what began as a verbal altercation, Sullivan stabbed the victim with a barbeque fork—twice. Sullivan was charged with aggravated battery with a deadly weapon causing great bodily harm. See §§ 775.087(1), 784.045(1)(a), Fla. Stat. (2016). In August 2016, Sullivan filed a motion to dismiss the charge, alleging that pursuant to section 776.032, Florida Statutes (2016), he was immune from prosecution or otherwise justified in the use of nondeadly force pursuant to section 776.012(1). Following an evidentiary hearing at which Sullivan and the victim testified, with no disagreement as to the relevant facts, the trial court denied the motion to dismiss on the basis that Sullivan had not proven by a preponderance of the evidence that he was entitled to immunity. Sullivan was subsequently convicted after a jury trial and sentenced to seven years in prison. It was not until after Sullivan's judgment and sentence had been rendered and his appeal filed that the legislature amended section 776.032, creating subsection (4) and modifying the burden of proof to be applied at Stand Your Ground immunity hearings.

This court previously reversed Sullivan's judgment and sentence based on Martin v. State, 43 Fla. L. Weekly D1016 (Fla. 2d DCA May 4, 2018), which concluded that the amendment was procedural and should be applied retroactively. Sullivan v. State, 276 So. 3d 42 (Fla. 2d DCA 2018). That decision has been quashed, and the case remanded to this court for reconsideration. State v. Sullivan, No. SC18-1388, 2020 WL 972557, at *1 (Fla. Feb. 28, 2020). On remand, we address only Sullivan's argument that the amendment to section 776.032 should be retroactively applied in his case.

In Love, the supreme court concluded that the 2017 amendment to section 776.032 is procedural and not substantive. 286 So. 3d at 185. It also concluded, however, that the modified burden of proof is not retrospective; rather, it “applies to all Stand Your Ground immunity hearings conducted on or after the statute's effective date,” thus disapproving Martin. Id. at 190.

Given the supreme court's conclusions in Love and the fact that Sullivan's Stand Your Ground hearing occurred before the effective date of the amended statute, we find no merit in his retroactive application argument. Sullivan's remaining argument also lacks merit. We therefore affirm his judgment and sentence.

Affirmed.

BLACK, Judge.

KHOUZAM, C.J., and MORRIS, J. Concur.