MAX HORTON v. STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: April 24, 2019
• Docket: 17-2852
• Status: Published

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

MAX NEWTON HORTON, ) ) Appellant, ) ) v. ) Case No. 2D17-2852 ) STATE OF FLORIDA, ) ) Appellee. ) )

Opinion filed April 24, 2019.

Appeal from the Circuit Court for Highlands County; Peter F. Estrada, Judge.

Howard L. Dimmig, II, Public Defender, and Victoria Hatfield, Special Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Allison C. Heim and Bilal Ahmed Faruqui, Assistant Attorneys General, Tampa, for Appellee.

VILLANTI, Judge.

Max Newton Horton appeals his conviction and sentence for one count of

attempted manslaughter by act with a firearm. Based on the 2017 amendment to

section 776.032, Florida Statutes, and this court's decision in Martin v. State, 43 Fla. L.

Weekly D1016 (Fla. 2d DCA May 4, 2018), review pending, No. SC18-789, we reverse and remand for a new Stand Your Ground hearing, with instructions based on the

outcome of that hearing. The remainder of Horton's arguments are without merit, and

we will not address them further.

Horton was charged with one count of attempted first-degree murder with

a firearm after he got into a dispute on September 17, 2015, with lawncare workers in

his neighborhood that ended with Horton brandishing a firearm. During the incident, the

firearm discharged, although there was disputed evidence as to whether Horton pulled

the trigger or whether the firearm discharged during a struggle over it.

Horton filed a motion to dismiss the charge against him based on the

statutory immunity provided by sections 776.032, 776.013, and 776.012, Florida

Statutes (2015). In that motion, Horton argued that during his confrontation with the

lawncare workers, he developed a well-founded and reasonable belief that brandishing

his firearm was necessary to prevent serious physical injury, the commission of a

forcible felony, or death, and that he reasonably believed that the display of deadly force

was necessary to prevent a felony offense. At the evidentiary hearing on that motion,

the trial court placed the burden of proof on Horton based on the language of the Stand

Your Ground statute in effect at the time. At the conclusion of the hearing, the trial court

denied the motion. Horton then proceeded to trial, where he was convicted by a jury of

the lesser-included offense of attempted manslaughter by act with a firearm.

In this appeal, Horton contends that he is entitled to a new Stand Your

Ground hearing at which the State would have the burden of proof. He premises this

argument on this court's decision in Martin, in which we held that the 2017 amendment

to section 776.032, which changed the burden of proof at Stand Your Ground hearings,

-2- was procedural rather than substantive and therefore applied retroactively to any case

that was not yet final. Martin, 43 Fla. L. Weekly at D1018; see also Tillman v. State, No.

2D16-5566, 2019 WL 1141471, at *1 (Fla. 2d DCA Mar. 13, 2019), review pending, No.

SC19-452; Drossos v. State, 43 Fla. L. Weekly D2764 (Fla. 2d DCA Dec. 14, 2018),

review pending, No. SC19-83. As we have done in those cases, we reverse Horton's

judgment and sentence and remand for a new Stand Your Ground hearing under the

2017 statute. If, following that hearing, the trial court determines that Horton is entitled

to statutory immunity, "it shall enter an order to that effect and dismiss the information

with prejudice." Martin, 43 Fla. L. Weekly at D1018. If, on the other hand, the trial court

determines that Horton is not entitled to immunity, it should enter an order reflecting its

findings and reinstate Horton's conviction and sentence. See id.

In addition, we note that the Third and Fourth District Courts of Appeal

have held that section 776.032, as amended, does not apply retroactively in pending

cases. Accordingly, we certify conflict with Hight v. State, 253 So. 3d 1137 (Fla. 4th

DCA 2018), review pending, No. SC18-1653, and Love v. State, 247 So. 3d 609 (Fla.

3d DCA 2018), review granted, No. SC18-747, 2018 WL 3147946 (Fla. June 26, 2018).

Finally, as we noted in Martin, we again note that the fact that Horton was

subsequently convicted by a jury should have no bearing on the trial court's

determination of the immunity issue. See Martin, 43 Fla. L. Weekly at D1018 ("We are

confident that the circuit judge who presides over Mr. Martin's immunity hearing on

remand will not rely upon the prior jury's determination that we are vacating but will

convene a new evidentiary hearing in an appropriate fashion, consistent with this court's

opinion and the statute's amended burden of proof.").

-3- Reversed and remanded with instructions; conflict certified.

KELLY and BLACK, JJ., Concur.

-4-