Supreme Court of Florida ____________
No. SC20-1164 ____________
ROY P. BOSTON, Petitioner,
vs.
STATE OF FLORIDA, Respondent.
October 7, 2021
CANADY, C.J.
In this case we consider whether a defendant convicted by jury
verdict after raising a self-defense claim is entitled to a new
immunity hearing if the trial court applied the incorrect standard at
the immunity hearing under section 776.032, Florida Statutes
(2017), known as Florida’s Stand Your Ground law. We have for
review Boston v. State (Boston II), 296 So. 3d 580, 582 (Fla. 1st DCA
2020), in which the First District answered that question in the
negative and, in doing so, certified conflict with the Second
District’s decision in Nelson v. State, 295 So. 3d 307 (Fla. 2d DCA 2020). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We
approve the First District’s holding in Boston II and disapprove
Nelson.
I. BACKGROUND
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. § 776.032(1), Fla. Stat. (2017). The immunity from
prosecution “includes arresting, detaining in custody, and charging
or prosecuting the defendant.” Id. Section 776.032 provides
immunity for “[a] person who uses or threatens to use force as
permitted in s. 776.012, s. 776.013, or s. 776.031.” Id. Relevant to
this case, section 776.012 provides:
(1) A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.
(2) A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself
-2- or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.
§ 776.012, Fla. Stat. (2017).
The question presented here regards the proper remedy for the
application of an incorrect burden of proof at an immunity hearing.
In 2015, this Court held that “the defendant bears the burden of
proof, by a preponderance of the evidence, to demonstrate
entitlement to Stand Your Ground immunity at the pretrial
evidentiary hearing.” Bretherick v. State, 170 So. 3d 766, 775 (Fla.
2015), superseded by statute as stated in Sparks v. State, 299 So.
3d 1 (Fla. 4th DCA 2020). In apparent response to Bretherick, the
Legislature amended section 776.032 in 2017, adding the following
subsection:
(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).
-3- See Ch. 2017-72, Laws of Fla.; § 776.032(4), Fla. Stat. (2017). The
amendment provided that it would “take effect upon becoming a
law,” which occurred on June 9, 2017. Id. In light of the 2017
amendment, a defendant is no longer required to prove that he or
she acted in self-defense by a preponderance of the evidence at an
immunity hearing; instead, a defendant need only make a prima
facie showing at that point. To defeat the claim of immunity, the
State must prove by clear and convincing evidence that the
defendant did not act in self-defense.
Boston was charged with aggravated battery with a deadly
weapon, arising from a 2016 altercation in which he struck his
former employer with a hammer. Boston filed a motion to dismiss,
arguing that he was entitled to immunity under section 776.032.
The parties agreed that the trial court would hear Boston’s
immunity motion during trial. Before commencing the trial and
immunity hearing on November 8, 2017, the trial court heard
argument regarding whether to apply the 2017 burden-shifting
amendment to section 776.032 retroactively in Boston’s case. The
trial court ruled that the preamendment standard set forth in
Bretherick would apply, and Boston would bear the burden of proof
-4- and be required to establish his entitlement to immunity by a
preponderance of the evidence. After the immunity hearing was
held during the trial, the trial court rejected Boston’s claim of
immunity. The jury also rejected Boston’s self-defense claim, and
ultimately convicted him of the lesser included offense of
misdemeanor battery.
While Boston’s initial appeal was pending review in this Court
in 2019, we decided Love v. State, 286 So. 3d 177 (Fla. 2019), in
which we held that the 2017 amendment to section 776.032 applied
to immunity hearings taking place on or after the statute’s effective
date of June 9, 2017. Thus, it should have applied to Boston’s
immunity hearing, which was held on November 8, 2017. As a
result, this Court granted the State’s petition for review of Boston v.
State (Boston I), 260 So. 3d 445, 446 (Fla. 1st DCA 2018), quashed,
45 Fla. L. Weekly S134 (Fla. Feb. 28, 2020), quashed the First
District’s decision below, and remanded to the First District for
reconsideration in light of Love and section 776.032(4), Florida
Statutes (2017).
On remand, the First District concluded that because Boston’s
immunity hearing took place after the amendment’s effective date,
-5- the trial court erred in failing to apply the 2017 amendment in that
hearing. But because Boston was subsequently convicted at trial,
the First District considered “whether a defendant convicted at trial
by proof beyond a reasonable doubt is entitled to a new immunity
hearing if the trial court applies the wrong standard at a hearing
conducted after the effective date of the amendment to the Stand-
Your-Ground statute.” Boston II, 296 So. 3d at 582. The court held
that “under those circumstances, a defendant is not entitled to a
new immunity hearing.” Id. The court reasoned that because “[t]he
State’s trial burden of overcoming the defendant’s self-defense claim
by proof beyond reasonable doubt is heavier than its pretrial
burden of overcoming the defendant’s self-defense immunity claim
by clear and convincing evidence,” a trial court’s error “in applying
the correct burden at the immunity hearing can be cured if the
State establishes the defendant’s guilt at trial by proof beyond a
reasonable doubt.” Id. at 583. And “[b]ecause the State overcame
Boston’s self-defense claim by meeting the heavier trial burden of
Free access — add to your briefcase to read the full text and ask questions with AI
Supreme Court of Florida ____________
No. SC20-1164 ____________
ROY P. BOSTON, Petitioner,
vs.
STATE OF FLORIDA, Respondent.
October 7, 2021
CANADY, C.J.
In this case we consider whether a defendant convicted by jury
verdict after raising a self-defense claim is entitled to a new
immunity hearing if the trial court applied the incorrect standard at
the immunity hearing under section 776.032, Florida Statutes
(2017), known as Florida’s Stand Your Ground law. We have for
review Boston v. State (Boston II), 296 So. 3d 580, 582 (Fla. 1st DCA
2020), in which the First District answered that question in the
negative and, in doing so, certified conflict with the Second
District’s decision in Nelson v. State, 295 So. 3d 307 (Fla. 2d DCA 2020). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We
approve the First District’s holding in Boston II and disapprove
Nelson.
I. BACKGROUND
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. § 776.032(1), Fla. Stat. (2017). The immunity from
prosecution “includes arresting, detaining in custody, and charging
or prosecuting the defendant.” Id. Section 776.032 provides
immunity for “[a] person who uses or threatens to use force as
permitted in s. 776.012, s. 776.013, or s. 776.031.” Id. Relevant to
this case, section 776.012 provides:
(1) A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.
(2) A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself
-2- or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.
§ 776.012, Fla. Stat. (2017).
The question presented here regards the proper remedy for the
application of an incorrect burden of proof at an immunity hearing.
In 2015, this Court held that “the defendant bears the burden of
proof, by a preponderance of the evidence, to demonstrate
entitlement to Stand Your Ground immunity at the pretrial
evidentiary hearing.” Bretherick v. State, 170 So. 3d 766, 775 (Fla.
2015), superseded by statute as stated in Sparks v. State, 299 So.
3d 1 (Fla. 4th DCA 2020). In apparent response to Bretherick, the
Legislature amended section 776.032 in 2017, adding the following
subsection:
(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).
-3- See Ch. 2017-72, Laws of Fla.; § 776.032(4), Fla. Stat. (2017). The
amendment provided that it would “take effect upon becoming a
law,” which occurred on June 9, 2017. Id. In light of the 2017
amendment, a defendant is no longer required to prove that he or
she acted in self-defense by a preponderance of the evidence at an
immunity hearing; instead, a defendant need only make a prima
facie showing at that point. To defeat the claim of immunity, the
State must prove by clear and convincing evidence that the
defendant did not act in self-defense.
Boston was charged with aggravated battery with a deadly
weapon, arising from a 2016 altercation in which he struck his
former employer with a hammer. Boston filed a motion to dismiss,
arguing that he was entitled to immunity under section 776.032.
The parties agreed that the trial court would hear Boston’s
immunity motion during trial. Before commencing the trial and
immunity hearing on November 8, 2017, the trial court heard
argument regarding whether to apply the 2017 burden-shifting
amendment to section 776.032 retroactively in Boston’s case. The
trial court ruled that the preamendment standard set forth in
Bretherick would apply, and Boston would bear the burden of proof
-4- and be required to establish his entitlement to immunity by a
preponderance of the evidence. After the immunity hearing was
held during the trial, the trial court rejected Boston’s claim of
immunity. The jury also rejected Boston’s self-defense claim, and
ultimately convicted him of the lesser included offense of
misdemeanor battery.
While Boston’s initial appeal was pending review in this Court
in 2019, we decided Love v. State, 286 So. 3d 177 (Fla. 2019), in
which we held that the 2017 amendment to section 776.032 applied
to immunity hearings taking place on or after the statute’s effective
date of June 9, 2017. Thus, it should have applied to Boston’s
immunity hearing, which was held on November 8, 2017. As a
result, this Court granted the State’s petition for review of Boston v.
State (Boston I), 260 So. 3d 445, 446 (Fla. 1st DCA 2018), quashed,
45 Fla. L. Weekly S134 (Fla. Feb. 28, 2020), quashed the First
District’s decision below, and remanded to the First District for
reconsideration in light of Love and section 776.032(4), Florida
Statutes (2017).
On remand, the First District concluded that because Boston’s
immunity hearing took place after the amendment’s effective date,
-5- the trial court erred in failing to apply the 2017 amendment in that
hearing. But because Boston was subsequently convicted at trial,
the First District considered “whether a defendant convicted at trial
by proof beyond a reasonable doubt is entitled to a new immunity
hearing if the trial court applies the wrong standard at a hearing
conducted after the effective date of the amendment to the Stand-
Your-Ground statute.” Boston II, 296 So. 3d at 582. The court held
that “under those circumstances, a defendant is not entitled to a
new immunity hearing.” Id. The court reasoned that because “[t]he
State’s trial burden of overcoming the defendant’s self-defense claim
by proof beyond reasonable doubt is heavier than its pretrial
burden of overcoming the defendant’s self-defense immunity claim
by clear and convincing evidence,” a trial court’s error “in applying
the correct burden at the immunity hearing can be cured if the
State establishes the defendant’s guilt at trial by proof beyond a
reasonable doubt.” Id. at 583. And “[b]ecause the State overcame
Boston’s self-defense claim by meeting the heavier trial burden of
proof beyond a reasonable doubt, the trial court’s failure to require
the State to overcome Boston’s immunity claim with clear and
convincing evidence was cured.” Id. at 583-84.
-6- The First District therefore affirmed Boston’s conviction and
sentence but certified conflict with Nelson, in which the Second
District held, without explanation or elaboration, that a defendant
was entitled to a new immunity hearing after the trial court
erroneously applied the preamendment burden of proof in his
immunity hearing, even though he had subsequently been
convicted by a jury. Nelson, 295 So. 3d 307. We now resolve that
conflict.
II. ANALYSIS
In order to resolve the conflict presented, we look to our earlier
decision in Dennis v. State, 51 So. 3d 456 (Fla. 2010). In Dennis,
“we consider[ed] whether a trial court should conduct a pretrial
evidentiary hearing and resolve issues of fact when ruling on a
motion to dismiss asserting immunity from criminal prosecution
pursuant to section 776.032, Florida Statutes (2006).” 51 So. 3d at
458. Dennis was charged with attempted first-degree murder (later
reduced to aggravated battery) and sought immunity by filing a
motion to dismiss under section 776.032. Id. at 458-59. The trial
court denied Dennis an evidentiary hearing on his motion,
“conclud[ing] that in enacting section 776.032, the Legislature did
-7- not intend to take the question of immunity away from the jury.”
Id. at 458. The jury ultimately convicted Dennis of the lesser
included offense of felony battery. Id. at 459.
After concluding that the trial court erred in denying Dennis
an evidentiary hearing, we held that the error was harmless
because there was “no reasonable possibility that the trial court’s
failure to make a pretrial evidentiary determination regarding
Dennis’s immunity claim contributed to Dennis’s conviction” at
trial, because Dennis presented his claim of self-defense to the jury,
but the jury rejected that claim and “determined that the evidence
established beyond a reasonable doubt that Dennis committed the
lesser included offense of felony battery.” Id. at 464.
The First District’s decision in Boston II is consistent with
Dennis. Dennis concluded that when a jury determines that the
defendant is guilty beyond a reasonable doubt, notwithstanding a
claim of self-defense, that determination cures the trial court’s
erroneous failure to hold a pretrial immunity hearing; Boston II
similarly held that the same jury determination cures a trial court’s
erroneous application of an incorrect burden and standard of proof
at an immunity hearing.
-8- The 2017 amendment to section 776.032 states that “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.”
§ 776.032(4), Fla. Stat. (2017). But at a trial, the party seeking to
overcome the immunity—the State—must overcome the defendant’s
claim of self-defense by a higher standard of proof: beyond a
reasonable doubt. When the State proves beyond a reasonable
doubt that the defendant did not act in self-defense, the clear and
convincing requirement is ultimately met and exceeded. And
although any legal error at the pretrial immunity hearing may, as
Boston claims, be “insulated from review once a defendant has
invoked his right to trial,” a defendant who avails him or herself to a
pretrial immunity hearing and who believes legal error was
committed at the pretrial immunity hearing may still seek relief by
filing a petition for a writ of prohibition 1 before invoking his or her
1. A defendant may also challenge the denial of pretrial immunity by entering a plea of no contest, reserving the right to
-9- right to a trial. Boston did not have the opportunity to seek review
of the denial of his immunity motion before a verdict was rendered
only because he voluntarily chose to waive his right to a pretrial
immunity hearing by agreeing to have his motion to dismiss heard
during the trial.
The First District’s opinion is well reasoned, legally sound, and
in line with Dennis. The First District correctly observed that “[t]he
State’s trial burden of overcoming the defendant’s self-defense claim
by proof beyond reasonable doubt is heavier than its pretrial
burden of overcoming the defendant’s self-defense immunity claim
by clear and convincing evidence.” Boston II, 296 So. 3d at 583
(citing Love, 286 So. 3d at 180). And thus, “a trial court’s error in
applying the correct burden at the immunity hearing can be cured if
the State establishes the defendant’s guilt at trial by proof beyond a
reasonable doubt.” Id. As applied here, the First District properly
concluded that the trial court’s failure to require the State to
overcome Boston’s immunity claim with clear and convincing
appeal the denial of the motion. See, e.g., Edwards v. State, 257 So. 3d 586, 587 (Fla. 1st DCA 2018).
- 10 - evidence was cured when “the State overcame Boston’s self-defense
claim by meeting the heavier trial burden of proof beyond a
reasonable doubt.” Id. at 583-84.
In order to convict Boston at trial, the jury had to reject his
claim of self-defense by concluding beyond a reasonable doubt that
he did not act in self-defense. See Fla. Std. Jury Instr. (Crim.)
3.6(f)-(g). To now vacate Boston’s conviction (and his waiver of a
pretrial immunity hearing) and remand for a new pretrial immunity
hearing at which the State would be required to prove by the lesser
standard of clear and convincing evidence that Boston did not act
in self-defense would violate the statutory prohibition on reversing a
judgment in the absence of error “that injuriously affected the
substantial rights of the appellant.” § 924.33, Fla. Stat. (2021). 2
III. CONCLUSION
For the reasons explained, we approve the decision of the First
District in Boston II and disapprove the decision of the Second
District in Nelson.
2. Boston raises several other arguments in favor of approving Nelson that are foreclosed by the fact that he waived his right to a pretrial immunity hearing and do not warrant further discussion.
- 11 - It is so ordered.
POLSTON, LABARGA, LAWSON, MUÑIZ, COURIEL, and GROSSHANS, 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 Certified Direct Conflict of Decisions
First District - Case No. 1D17-5190
(Leon County)
Jessica J. Yeary, Public Defender, Lori A. Willner, and Kasey Lacey, Assistant Public Defenders, Second Judicial Circuit, Tallahassee, Florida,
for Petitioner
Ashley Moody, Attorney General, Amit Agarwal, Solicitor General, Jeffrey Paul DeSousa, Chief Deputy Solicitor General, and Christopher J. Baum, Senior Deputy Solicitor General, Tallahassee, Florida,
for Respondent
- 12 -