HORTON v. STATE (2020)

ON REMAND FROM THE FLORIDA SUPREME COURT

This matter is before us on remand from the Florida Supreme Court for reconsideration based on its decision in Love v. State, 286 So. 3d 177 (Fla. 2019). The State charged Max Newton Horton with one count of attempted first-degree murder with a firearm. Prior to trial, Horton filed a motion to dismiss the information based on section 776.032, Florida Statutes (2015), Florida's “Stand Your Ground” law. At the evidentiary hearing on the motion, the trial court applied the statutory burden of proof in effect at that time, which required the defendant to demonstrate by a preponderance of the evidence that he or she was immune from prosecution. See Bretherick v. State, 170 So. 3d 766, 779 (Fla. 2015). Using that burden of proof, the trial court denied Horton's motion. Subsequently, the legislature amended section 776.032, placing the burden on the State to overcome a facially sufficient claim of self-defense immunity by clear and convincing evidence. See § 776.032(4), Fla. Stat. (2017). On appeal, this court reversed Horton's judgment and sentence and remanded for a new immunity hearing under the amended statute in light of our holding in Martin v. State, 43 Fla. L. Weekly D1016, D1018 (Fla. 2d DCA May 4, 2018) (holding that the 2017 amendment is procedural in nature, applied retroactively, and warranted remand for a new immunity hearing), disapproved of by Love, 286 So. 3d at 190.

The State appealed our decision to the supreme court. On remand, we now conclude that Horton is not entitled to a new immunity hearing because his immunity hearing occurred before the amended statute's effective date. Thus, it was not error for the trial court to have conducted the immunity hearing under the standard enunciated in Bretherick. See Love, 286 So. 3d at 190 (“Section 776.032(4) is a procedural change in the law and applies to all Stand Your Ground immunity hearings conducted on or after the statute's effective date.”). Accordingly, we affirm Horton's judgment and sentence.

Affirmed.

VILLANTI, Judge.

KELLY and BLACK, JJ., Concur.