TASHARA LOVE, Petitioner, vs. STATE OF FLORIDA, Respondent.
No. SC18-747
Supreme Court of Florida
December 19, 2019
The certified conflict issue in this case is whether
This Court has for review Love v. State, 247 So. 3d 609, 613 (Fla. 3d DCA 2018), in which the Third District Court of Appeal concluded that
granted discretionary review of Love and has jurisdiction. See
We agree with Martin that
We begin by briefly reviewing the Stand Your Ground law and the statutory amendment at issue. We next present the facts and procedural history of Love and discuss Martin. We then explain our decision in this case, including our conclusion that applying
I. SECTION 776.032(4)
Under the Stand Your Ground law, a person is generally “immune from criminal prosecution and civil action” when that person justifiably uses or threatens to use force under certain circumstances.
beyond a reasonable doubt that the defendant‘s conduct was not justified under the governing statutory standard.” Id.
(4) In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).
II. BACKGROUND
Petitioner, Tashara Love, seeks review of the Third District‘s decision denying her petition for writ of prohibition after the trial court denied her motion for immunity. The relevant facts are as follows:
On November 26, 2015, Love and a group of women were involved in an altercation, which lasted approximately three minutes, outside a Miami-Dade County nightclub. At the end of the altercation, Love shot the victim, Thomas Lane, as he was about to hit her daughter. Love does not dispute these facts.
Thereafter, the State charged Love with one count of attempted second degree murder with a firearm. Love invoked Florida‘s Stand Your Ground law, section 776.032, Florida Statute[s] (2017), asserting she was immune from prosecution because she committed the crime while defending her daughter.
Love, 247 So. 3d at 610. Love argued to the trial court that the newly enacted amendment in
The Trial Court‘s Order
After an evidentiary hearing, the trial court sought to determine whether “the Amendment should apply to all pending cases or . . . only to cases where the conduct at issue occurred after the effective date.” The trial court cited Landgraf v. USI Film Products, 511 U.S. 244, 255-64 (1994), and Metropolitan Dade County v. Chase Federal Housing Corp., 737 So. 2d 494 (Fla. 1999), for the proposition that the first step in a retroactivity analysis is to determine whether there is a clear expression of legislative intent regarding retroactivity. The trial court examined the 2017 amendment and found no such expression of intent.
The trial court next looked to “whether the statute is procedural/remedial or substantive.” Recognizing that “burden of proof standards are normally considered procedural,” the trial court cited Arrow Air, Inc. v. Walsh, 645 So. 2d 422, 424 (Fla. 1994), for the proposition that “[t]he presumption applied to procedural and remedial statutes is that they are to apply to pending cases.” The trial court then rejected the State‘s reliance on Smiley v. State, 966 So. 2d 330 (Fla. 2007). There, this Court concluded that a statute “establish[ing] a ‘no duty to retreat’ rule in a broad context that had not previously existed” was “a substantive change in the statutory law” and could not be applied retroactively to pending cases. Id. at 335-37. In doing so, Smiley noted among other things that a statute is deemed substantive if it “achieves a ‘remedial purpose by creating substantive new rights or imposing new legal burdens.‘” Id. at 334 (quoting Arrow Air, 645 So. 2d at 424). Here, the trial court determined that
The trial court also declined to read too broadly the language of
After concluding that
The trial court then explained why Love “has not carried her burden” under Bretherick. Noting in part that Love‘s affidavit was “contradicted by an objective review of the [security camera] video in numerous material respects,” the trial court concluded that “[n]othing that [the victim] did that evening could leave a reasonable person in fear that [Love‘s daughter] would lose her life or suffer great bodily harm.” After effectively concluding that the video evidence prevented Love from meeting a reasonable person standard,2 the trial court—in seemingly irreconcilable fashion—opined that had
her daughter was about to suffer great bodily harm.” But Bretherick controlled—according to the trial court‘s reasoning—and Love therefore was not entitled to immunity. Love then petitioned the Third District for a writ of prohibition.
The Third District‘s Decision
In denying Love‘s petition, the Third District first rejected the trial court‘s conclusion that
The Third District next disagreed with the trial court‘s conclusion that the 2017 amendment was procedural. The Third District determined that Smiley “mandates a finding that [section 776.032(4)] is a substantive change in the law.” Id. at 611 n.3. The Third District reasoned that the statute “imposed a new legal burden on the State, requiring the State to prove by clear and convincing evidence that the defendant was not justified in using or threatening to use force.” Id. at 612-13. And according to the Third District, because
Lastly, again looking to Smiley, the Third District explained its view that
In the case before us, section 776.032(4) qualifies as a criminal statute because it affects whether the State can prosecute a defendant in the same manner as before subsection (4) was added. If the amended statute were to apply to Love, she could not be prosecuted in the same manner as before because the burden of proof at the immunity hearing would now shift to the State and the burden would rise to clear and convincing evidence.
Id. Recognizing that its decision conflicted with Martin, in which the Second District concluded that
Martin—the Certified Conflict Case
In Martin, the defendant, Martin, was charged with felony battery. Martin, 43 Fla. L. Weekly at D1016. The trial court denied Martin‘s immunity motion, and Martin was tried, convicted, and sentenced. Id. While Martin‘s appeal was pending,
After setting forth “some basic postulates about the application of statutory amendments“—including that procedural amendments “may apply retroactively to pending proceedings“—the Second District summed up this Court‘s caselaw:
Broadly speaking, substantive law is that which “prescribes duties and rights,” while “procedural law concerns the means and methods to apply and enforce those duties and rights.” Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994). Amendments are procedural in nature if they “do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of rights already existing.” Smiley v. State, 966 So. 2d 330, 334 (Fla. 2007) (quoting City of Lakeland v. Catinella, 129 So. 2d 133, 136 (Fla. 1961)). In the context of criminal cases specifically, “substantive law is that which declares what acts are crimes and prescribes the punishment therefor, while procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished.” State v. Garcia, 229 So. 2d 236, 238 (Fla. 1969).
Id. at D1017. The Second District then noted that “statutory changes to the burden of proof—the change at issue here—are invariably deemed procedural in nature for purposes of retroactive application.” Id. And the Second District concluded that
III. ANALYSIS
The certified conflict issue is whether
This issue presents a pure question of law that this Court reviews de novo. See Bionetics Corp. v. Kenniasty, 69 So. 3d 943, 947 (Fla. 2011) (applying a de novo standard to “[t]he question of whether a statute applies retroactively or prospectively“).
At the outset, we recognize that sometimes “[t]he distinction between substantive and procedural law is neither simple nor certain.” Caple v. Tuttle‘s Design-Build, Inc., 753 So. 2d 49, 53 (Fla. 2000). We also recognize that some of this Court‘s general pronouncements regarding the retroactivity of procedural law have been less than precise. Indeed, we acknowledge having been unclear about what it means to give retroactive application to procedural law. But properly understood, the caselaw compels the conclusions that
To explain our decision, we first briefly examine Smiley, on which the Third District in Love largely relied in concluding that
was conducted prior to the effective date of that provision. Lastly, we explain why
Smiley
Smiley addressed whether
Smiley first examined “whether the statute constitutes a procedural/remedial change or a substantive change in the law,” the latter of which would carry a “presumption against retroactive application.” Id. at 334. Smiley described the former as statutes “which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of rights already existing.” Id. (quoting Catinella, 129 So. 2d at 136). Smiley concluded that the statute was “clearly” substantive “because it alters the circumstances in which it is considered a criminal act to use deadly force without first needing to retreat“—i.e., it “created a new affirmative defense.” Id. at 335.
Smiley next explained that the substantive statute‘s “presumption of prospective application” could only be overcome if “there is clear evidence of legislative intent to apply the statute [retroactively],” and then only if “retroactive application is constitutionally permissible.” Id. at 336 (alteration in original) (quoting Metropolitan Dade, 737 So. 2d at 499). Smiley looked to
The key determination is that section 776.013 qualifies as a “criminal statute.” With regard to article X, section 9, the term “criminal statute” is defined in a broad context. In Washington v. Dowling, 92 Fla. 601, 109 So. 588 (1926), this Court provided the following definition for the words “criminal statute“: “[A]n act of the Legislature as an organized body relating to crime or its punishment . . . defining crime, treating of its nature, or providing for its punishment . . . [or] deal[ing] in any way with crime or its punishment.” Id., 109 So. at 591. In the instant matter, section 776.013 qualifies as a “criminal statute,” because it has a direct impact on the prosecution of the offense of “murder” in Florida. Cf. State v. Watts, 558 So. 2d 994, 999-1000 (Fla. 1990) (holding that article X, section 9 did not prevent retroactive application of the legislation, because the parties could still “be prosecuted and punished in the same manner“) (quoting Ex parte Pells, 28 Fla. 67, 9 So. 833, 834-35 (1891)). Unlike the defendant in Watts, Smiley could not be prosecuted in the same manner because retroactive application of section 776.013 would provide him with a new affirmative defense to the first-degree murder charge (i.e., he had no duty to retreat before he used deadly force in self-defense in his taxi).
Id. at 336-37 (alterations in original).
Procedural vs. Substantive
Smiley noted that a statute is deemed substantive if it “achieves a ‘remedial purpose by creating substantive new rights or imposing new legal burdens.‘” Id. at 334 (quoting Arrow Air, 645 So. 2d at 424). The Third District here largely relied on this language, reasoning that under
In State v. Garcia, 229 So. 2d 236, 238 (Fla. 1969), this Court, as in Smiley, set out the general difference between procedural law and substantive law. Garcia then distinguished the two concepts in the specific context of “criminal law and procedure,” explaining:
As related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes the punishment therefor, while procedural law is that which provides or regulates the
steps by which one who violates a criminal statute is punished. See State v. Augustine, 197 Kan. 207, 416 P.2d 281 (1966).
Id. Under Garcia,
This Court‘s civil cases do not support a conclusion that
Here, the Legislature did not withdraw or interfere with any vested right. Nor did the Legislature create any new substantive right. The “substantive right to assert immunity” was established in 2005. Dennis, 51 So. 3d at 462.
Two additional factors support the conclusion that
(noting that certain other states had “adopted a procedure in which the defendant bears the burden of proof, by a preponderance of the evidence at a pretrial evidentiary hearing, in the context of their analogous immunity laws“); Dennis, 51 So. 3d at 459 (“The trial court recognized that no procedure had yet been enacted for deciding claims of immunity under section 776.032(1).“).
Retroactivity
We recognize that this Court‘s previous pronouncements have not been entirely consistent regarding the retroactivity of procedural statutes. Compare Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994) (“Procedural or remedial statutes . . . are to be applied retrospectively and are to be applied to pending cases.“), with Lee v. State, 174 So. 589, 591 (Fla. 1937) (“[T]hose [statutes] affecting procedure . . . may in some cases be given a retrospective operation . . . .“).5 Indeed, some of those pronouncements arguably support the Second District‘s retroactivity approach in Martin. But properly understood, whether a new procedural statute applies in a pending case will generally turn on the posture of the case, not the date of the events giving rise to the case. And if the new procedure does apply, that is not in and of itself a
retrospective operation of the statute. This conclusion finds support in the Supreme Court‘s decision in Landgraf, as well as this Court‘s caselaw.
Landgraf generally explained the concept of a retrospective statute: “A statute does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute‘s enactment . . . . Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment.” Landgraf, 511 U.S. at 269-70. This Court has echoed on multiple occasions Landgraf‘s notion of a retrospective law. E.g., Metropolitan Dade, 737 So. 2d at 499; Arrow Air, 645 So. 2d at 424-25.
Here, although
Changes in procedural rules may often be applied in suits arising before their enactment without raising concerns about retroactivity. For example, in Ex parte Collett, 337 U.S. 55, 71 (1949), we held that
28 U.S.C. § 1404(a) governed the transfer of an
action instituted prior to that statute‘s enactment. We noted the diminished reliance interests in matters of procedure. 337 U.S., at 71. Because rules of procedure regulate secondary rather than primary conduct, the fact that a new procedural rule was instituted after the conduct giving rise to the suit does not make application of the rule at trial retroactive.
Landgraf, 511 U.S. at 275 (footnote omitted); see also id. at 275 n.29 (stopping short of “suggest[ing] that concerns about retroactivity have no application to procedural rules“). But that does not mean that a new procedure applies in all pending cases. Rather, the “commonsense” application of a new procedure generally “depends on the posture of the particular case“:
Of course, the mere fact that a new rule is procedural does not mean that it applies to every pending case. A new rule concerning the filing of complaints would not govern an action in which the complaint had already been properly filed under the old regime, and the promulgation of a new rule of evidence would not require an appellate remand for a new trial. Our orders approving amendments to federal procedural rules reflect the commonsense notion that the applicability of such provisions ordinarily depends on the posture of the particular case.
Id. at 275 n.29 (emphasis added).
We conclude that
For example, in Lee, 174 So. at 589-90, this Court dismissed as untimely an appeal brought outside the period established by a statute that went into effect after the date of the alleged crime but before judgment of conviction was entered. Noting that the issue presented “a question of procedure” and that “statutes . . . affecting procedure . . . may in some cases be given a retrospective operation,” this Court determined that the new statute was “plainly intended to have a prospective operation only.” Id. at 590-91. But “prospective operation” meant that the new statutory time limit “applie[d] to writs of error to judgments rendered after the statute became effective,” and thus the statute applied in the pending case. Id. at 591. More recently, Pearlstein v. King, 610 So. 2d 445, 445-46 (Fla. 1992), concluded that a new rule of civil procedure imposing a “120-day time limit for serving a defendant after filing an initial pleading . . . applie[d] to complaints filed prior to . . . the effective date of the rule” but that the 120-day period began from the rule‘s effective date. After noting that “[r]ules of procedure are prospective unless specifically provided otherwise,” this Court explained that its decision was a “prospective application” of the new rule and “not a true retroactive application,” the latter of which would have required service “within 120 days of filing [the] complaint.” Id. at 446.
In the certified conflict case, Martin correctly concluded that
application,” id., by ordering a new immunity hearing for a defendant convicted prior to the statute‘s effective date. The caselaw does not support such a default application of a procedural statute. And the legislation itself is devoid of any suggestion that the Legislature intended
Indeed, the legislation on its face is plainly forward-looking.
Article X, Section 9
Smiley quoted Washington v. Dowling, 109 So. 588 (Fla. 1926), for the proposition that “the term ‘criminal statute’ is defined in a broad context.” Smiley, 966 So. 2d at 337. Dowling defined the term to include statutes that “deal in any way with crime or its punishment.” Dowling, 109 So. at 591.
“crimes.” Smiley itself—despite quoting Dowling—clearly based its conclusion regarding
In State v. Watts, 558 So. 2d 994, 995-96, 998 (Fla. 1990), this Court addressed whether
the constitutional provision did not prevent the defendant from benefitting from a new law that in no way “changed or affected” the statutes under which the defendant was prosecuted and punished. Pells, 9 So. at 834. Pells explained that the defendant could “be prosecuted and punished in the same manner,” id., and that nothing “chang[ed] either the nature of the offense created, or even the character or degree of the punishment authorized,” id. at 834-35.
Two years after Pells, this Court in Mathis v. State, 12 So. 681, 683, 687 (Fla. 1893), concluded that the constitutional provision did not prevent the application at trial of a new statute that reduced a capital defendant‘s peremptory challenges from twenty to ten. Noting that the constitutional provision was “designed . . . to guard against the liberation of offenders without trial by the repeal of statutes under which offenses may have been committed,” Mathis explained that the provision did not apply to “the remedy or procedure which the legislature may enact for the prosecution and punishment of offenses, unless the change in the remedy should affect in some way the substantial rights of defense.” Id. at 687 (emphasis added). Rather, the provision “relates to the offense itself, or the punishment thereof.” Id. And “the right to peremptory challenges appertains to the remedy, the procedure under which prosecutions are conducted.” Id. Here, nothing about
Dowling, decided after Mathis, has no application here. There, after the defendant was sentenced to death by hanging, a statutory amendment abolished “death by hanging as a means of punishment,” and “death by electricity [was] substituted therefor.” Dowling, 109 So. at 588-89. Dowling concluded that the amendment did “not affect . . . prosecution” but that it did “affect the punishment prescribed by law,” id. at 591, and could not be applied to the defendant, id. at 592-93. In other words, the defendant was to die by hanging. Dowling thus turned on the term “punishment,” not “prosecution.” Moreover, Dowling had a jurisdictional underpinning. See id. at 592 (“Such sentence is now final, the power of the court over the subject-matter is at an end, and there exists no means by which the court can regain control of the cause.“).
This case has nothing to do with finality, and
IV. CONCLUSION
It is so ordered.
POLSTON, LABARGA, LAWSON, and MUÑIZ, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal – Statutory Validity/Certified Direct Conflict of Decisions
Third District - Case No. 3D17-2112
(Miami-Dade County)
Carlos J. Martinez, Public Defender, and Maria E. Lauredo, Chief Assistant Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, Eleventh Judicial Circuit, Miami, Florida,
for Petitioner
Ashley Moody, Attorney General, and Amit Agarwal, Solicitor General, Edward Wenger, Chief Deputy Solicitor General, and Christopher Baum, Deputy Solicitor General, Office of the Attorney General, Tallahassee, Florida,
for Respondent
Jason Gonzalez of Shutts & Bowen LLP, Tallahassee, Florida; and Stephen P. Halbrook of Shutts & Bowen LLP, Fairfax, Virginia,
for Amici Curiae Unified Sportsmen of Florida, Inc.
David H. Thompson and Davis Cooper of Cooper & Kirk, PLLC, Washington, District of Columbia,
for Amicus Curiae National Rifle Association Freedom Action Foundation
Glen P. Gifford, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida; and Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee,
for Amici Curiae Florida Public Defender Association, Inc. and Florida Association of Criminal Defense Lawyers
Penny H. Brill of Theodore F. Brill, P.A., Plantation, Florida,
for Amicus Curiae
Glenn Burhans, Jr., and Kelly A. O‘Keefe of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Tallahassee, Florida,
for Amicus Curiae Giffords Law Center to
Darren A. LaVerne, Daniel M. Ketani, and Timur Tusiray of Kramer Levin Naftalis & Frankel, LLP, New York, New York; and Sean R. Santini of Santini Law, Miami, Florida,
for Amici Curiae for
Ricardo J. Bascuas, Coral Gables, Florida,
for Amicus Curiae University of Miami School of Law – Federal Appellate Clinic