247 So. 3d 609
Fla. Dist. Ct. App.2018Background
- In Nov. 2015, Tashara Love shot Thomas Lane during a ~3-minute altercation outside a nightclub as Lane was about to hit Love’s daughter; Love was charged with attempted second-degree murder with a firearm.
- Love invoked Florida’s Stand Your Ground immunity (section 776.032), claiming she acted to defend her daughter and sought a pretrial immunity ruling.
- Before Love’s hearing, the Legislature amended section 776.032 (effective June 9, 2017) to add subsection (4), shifting the burden: once a defendant makes a prima facie claim, the State must overcome immunity by clear and convincing evidence.
- The trial court rejected the State’s nonretroactivity argument but held subsection (4) unconstitutional under separation of powers, applying the pre-amendment Bretherick standard (defendant bears burden by preponderance) and denied immunity to Love.
- Love petitioned for a writ of prohibition; the appellate court considered (1) whether the 2017 burden-shift statute is constitutional and (2) whether it applies retroactively to crimes committed before its effective date.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2017 amendment to §776.032 (burden shift to State, clear-and-convincing) is constitutional | Love implicitly argued trial-court ruling should stand; (primary posture was seeking immunity under prior law) | State argued subsection (4) was unconstitutional because the Supreme Court alone sets procedural burdens under Art. V rulemaking | Court held subsection (4) is constitutional; Legislature may enact procedural provisions intertwined with substantive rights and may allocate burdens of proof |
| Whether §776.032(4) applies retroactively to crimes committed before June 9, 2017 | Love sought application of the amended standard to her 2015 shooting (benefit of burden shift) | State argued amendment is not retroactive and alternatively unconstitutional | Court held the amendment is substantive (imposes new legal burden on prosecution) and under Smiley and Art. X, §9 it cannot be applied retroactively; amendment does not benefit Love |
Key Cases Cited
- Bretherick v. State, 170 So. 3d 766 (Fla. 2015) (pre-amendment rule: defendant bears burden by preponderance at pretrial immunity hearing)
- Smiley v. State, 966 So. 2d 330 (Fla. 2007) (statute creating new substantive rights or burdens is substantive; Florida Constitution prohibits retroactive application of criminal statutes)
- Dennis v. State, 51 So. 3d 456 (Fla. 2010) (Stand Your Ground grants substantive right to assert immunity and avoid trial)
- Mobley v. State, 132 So. 3d 1160 (Fla. 2014) (writ of prohibition is proper method to review denial of pretrial Stand Your Ground immunity)