GUILLERMO PENALVER v. THE STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: February 2, 2022
• Docket: 21-1879
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed February 2, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-1879 Lower Tribunal No. F21-7542 ________________

Guillermo Penalver, Petitioner,

vs.

The State of Florida, Respondent.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Zachary James, Judge.

Carlos J. Martinez, Public Defender, and Deborah Prager, Assistant Public Defender, for petitioner.

Ashley Moody, Attorney General, and David Llanes, Assistant Attorney General, for respondent.

Before FERNANDEZ, C.J., and LOGUE, and BOKOR, JJ.

PER CURIAM. Guillermo Penalver seeks a writ of certiorari quashing the trial court’s

order denying his motion to dismiss based on stand your ground immunity

filed pursuant to section 776.032, Florida Statutes (2020). The trial court,

based on its conclusion that Penalver’s motion below was not sworn and did

not rely on record evidence, together with Penalver’s failure to present any

evidence or testimony to support his claim of immunity, denied the motion.

For the reasons discussed herein, we grant the petition, quash the trial

court's order, and remand with instructions.

While Penalver’s petition was pending in this Court, we issued

Casanova v. State, 46 Fla. L. Weekly D2326 (Fla. 3d DCA Oct. 27, 2021),

holding:

[A] defendant’s motion to dismiss under Florida's Stand Your Ground law can establish a prima facie claim of self-defense immunity from criminal prosecution even though the motion to dismiss is not sworn to by someone with personal knowledge or supported by evidence or testimony establishing the facts in the motion to dismiss.

We therefore grant the petition for a writ of certiorari, quash the order

below, and remand for further proceedings consistent with Casanova.

Petition granted; order quashed.