Supreme Court of Florida ____________
No. SC18-747 ____________
TASHARA LOVE, Petitioner,
vs.
STATE OF FLORIDA, Respondent.
December 19, 2019
CANADY, C.J.
The certified conflict issue in this case is whether section 776.032(4),
Florida Statutes (2017), which effective in June 2017 altered the burden of proof at
pretrial immunity hearings under Florida’s “Stand Your Ground” law, applies to
pending cases involving criminal conduct alleged to have been committed prior to
the effective date of the statute. In the decision below and the certified conflict
case, the district courts framed this issue as presenting a “retroactivity” question
that itself turns on whether section 776.032(4) is procedural or substantive.
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 section 776.032(4) was “a substantive change in the law, and therefore does not apply
retroactively.” The Third District also concluded that article X, section 9 of the
Florida Constitution precluded the statute from being applied retroactively. Id. 1
According to the Third District, this lack of retroactivity meant that section
776.032(4) was inapplicable in the case, even though the defendant’s immunity
hearing took place after the statute went into effect. Id. at 610, 612. In the
certified conflict case of Martin v. State, 43 Fla. L. Weekly D1016, D1018, 2018
WL 2074171, at *4 (Fla. 2d DCA May 4, 2018), the Second District Court of
Appeal concluded that section 776.032(4) “is procedural in nature and, therefore,
retroactive in application; that, as such, it applies to pending cases, including those
on appeal.” The Second District also concluded that article X, section 9 did not bar
retroactive application of the statute. Id. at D1017 n.5. According to the Second
District, this retroactivity meant that the defendant who had already been convicted
prior to the statute’s effective date was “entitled to a new immunity hearing under
the amended procedure of the statute.” Id. at D1018; see id. at D1016. This Court
1. At the time, article X, section 9 provided: “Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed.” Article X, section 9 was subsequently amended in November 2018 and now reads: “Repeal of a criminal statute shall not affect prosecution for any crime committed before such repeal.” These changes went into effect on January 8, 2019. See art. XI, § 5(e), Fla. Const. Whether these changes are themselves retroactive is not before this Court. We look only to the pre-2019 language.
-2- granted discretionary review of Love and has jurisdiction. See art. V, § 3(b)(4),
Fla. Const.
We agree with Martin that section 776.032(4) is a procedural change in the
law and is not categorically barred by article X, section 9 from applying in pending
cases. Accordingly, we quash Love. However, we disagree with Martin’s all-or-
none conclusion that the new procedures apply in all pending cases, even where
the immunity hearing was held prior to the statute’s effective date. The
determination of whether a new procedure applies in a pending case generally
depends on the posture of the case. Here, the relevant event is the immunity
hearing, and section 776.032(4) applies to those immunity hearings taking place on
or after the statute’s effective date. Because there is no indication the Legislature
intended the statute to undo pre-effective-date immunity hearings, we disapprove
Martin’s decision to order a new immunity hearing in that case.
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 section 776.032(4) in a pending case does not entail a
retroactive application of the statute.
-3- 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. § 776.032(1), Fla. Stat. (2017); see ch.
2005-27, Laws of Fla. The criminal immunity “includes arresting, detaining in
custody, and charging or prosecuting the defendant.” § 776.032(1), Fla. Stat. In
Dennis v. State, 51 So. 3d 456, 464 (Fla. 2010), this Court held that a motion to
dismiss asserting immunity under section 776.032 “should be treated as a motion
filed pursuant to [Florida Rule of Criminal Procedure] 3.190(b)” and that the trial
court should conduct a pretrial evidentiary hearing and “decide the factual question
of the applicability of the statutory immunity.” But Dennis did not reach the issue
of burden of proof. That issue was later decided in Bretherick v. State, 170 So. 3d
766 (Fla. 2015). Bretherick concluded that at a pretrial immunity hearing “the
defendant bears the burden of proof, by a preponderance of the evidence, to
demonstrate entitlement to Stand Your Ground immunity.” Id. at 768. The dissent
in Bretherick argued that the burden should be the same as when a Stand Your
Ground defense is presented at trial, because “the essential nature of the
[underlying] factual question” is the same in both settings. Id. at 779 (Canady, J.,
dissenting). In other words, the burden should be on the State to “establish[]
-4- beyond a reasonable doubt that the defendant’s conduct was not justified under the
governing statutory standard.” Id.
Section 776.032(4) was the Legislature’s eventual response to Bretherick.
The 2017 amendment to section 776.032 provides:
(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).
§ 776.032(4), Fla. Stat. (2017); see ch. 2017-72, § 1, Laws of Fla. The Legislature
thus largely adopted the Bretherick dissent but with a “clear and convincing”
burden on the State as opposed to the more exacting trial burden of “beyond a
reasonable doubt.” In adopting this framework, the Legislature provided that the
legislation “shall take effect upon becoming a law.” Ch. 2017-72, § 2, Laws of
Fla.
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.
-5- 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 section 776.032(4) should apply to her immunity hearing. The State
countered that section 776.032(4) did not have retroactive application and that
even if it did, applying it to pending cases would violate article X, section 9. The
State argued in the alternative that the statute violated the separation of powers
doctrine.
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
-6- 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 section 776.032(4) “create[d] no
substantive rights” and that terms such as “new legal burdens” had to be “strictly
limited to the creation or destruction of substantive or vested rights.”
The trial court also declined to read too broadly the language of article X,
section 9 barring retroactivity of statutory amendments that “affect prosecution or
punishment.” The trial court explained that this Court has long “held that
legislative enactments that affect the procedure of a criminal case do not run afoul
of the [constitutional] prohibition so long as they do not address themselves to the
essence of the offense itself, i.e., the definition of the crime, or the nature of the
-7- punishment.” The trial court concluded that section 776.032(4) “merely changed
the procedure for how a defendant enforces his right to statutory immunity.”
After concluding that section 776.032(4) was procedural and that article X,
section 9 did not apply, the trial court concluded that the statute nevertheless
violated the separation of powers, namely this Court’s rulemaking authority under
article V, section 2(a). In other words, “Bretherick . . . survives the Amendment.”
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 section 776.032(4) applied, Love would be
entitled to immunity. The trial court noted it “cannot say, without hesitancy, that
the State proved that Tashara Love was not responding to a reasonable belief that
2. Section 776.012(2), Florida Statutes (2019), provides in part: “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 or herself or another or to prevent the imminent commission of a forcible felony.”
-8- 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 section 776.032(4) was unconstitutional. The Third District
concluded that the Legislature acted within its “constitutional authority to enact
procedural provisions in statutes that are intertwined with substantive rights,” in
this case the substantive right to immunity. Love, 247 So. 3d at 611.3
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 section 776.032(4) is
substantive, it “therefore does not apply retroactively.” Id. at 613.
3. We have been presented with no challenge to the Third District’s ruling regarding the constitutionality of section 776.032(4). We thus do not address this issue.
-9- Lastly, again looking to Smiley, the Third District explained its view that
article X, section 9 also prevented the statute from being applied to Love’s case:
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 section 776.032(4) was a procedural change that should be
applied retroactively, the Third District certified conflict with Martin, while
opining that Martin was inconsistent with Smiley. Id. at 611 n.3.
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, section 776.032(4) went into effect, and Martin argued that he was
“entitled to a new immunity hearing.” Id. The Second District agreed, concluding
that the statute was “procedural in nature and, therefore, retroactive in application;
that, as such, it applies to pending cases, including those on appeal.” Id. at D1018.
- 10 - 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
section 776.032(4) was no exception to that general rule and thus “can be applied
retrospectively” because it altered “[n]either the substantive rights of a successful
claim of immunity nor the necessary elements of proof to establish a claim of
immunity.” Id.
III. ANALYSIS
The certified conflict issue is whether section 776.032(4), Florida Statutes
(2017), applies to cases that were pending at the time the statute went into effect.
- 11 - 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 section 776.032(4) is
procedural, applies to all immunity hearings on or after the statute’s effective date,
and does not implicate article X, section 9.
To explain our decision, we first briefly examine Smiley, on which the Third
District in Love largely relied in concluding that section 776.032(4) is substantive
and thus not retroactive. We then explain why Smiley does not control and why
section 776.032(4) is procedural. We then clarify some of this Court’s previous
pronouncements regarding the retroactivity of procedural law and explain why the
Second District in Martin erred in concluding that section 776.032(4) applied in all
pending cases, including cases in which the Stand Your Ground immunity hearing
- 12 - was conducted prior to the effective date of that provision. Lastly, we explain why
article X, section 9 is inapplicable.
Smiley
Smiley addressed whether section 776.013, Florida Statutes (2005), which
was enacted in 2005 as part of the original Stand Your Ground legislation, was
retroactively “applicable to cases pending at the time of its enactment.” Smiley,
966 So. 2d at 333. More specifically, Smiley addressed whether a defendant whose
“conduct . . . allegedly occurred prior to the . . . effective date of” the statute, id. at
337, was entitled to certain jury instructions based upon the new law, id. at 332.
Smiley concluded that the statute could not be applied retroactively. Id. at 336-37.
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 City of Lakeland v. Catinella, 129 So. 2d 133, 136 (Fla. 1961)).
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.
- 13 - 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 article X,
section 9’s “restriction on retroactive application of criminal legislation” and
concluded that the new statute could not be applied retroactively:
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).
- 14 - 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 section 776.032(4) the State has the
new burden of disproving an immunity claim by clear and convincing evidence.
See Love, 247 So. 3d at 612-13. The State advances the same reasoning and also
cites the following language from Arrow Air: “The presumption against retroactive
application of a law that affects substantive rights, liabilities, or duties is a well
established rule of statutory construction.” Arrow Air, 645 So. 2d at 425. The
State argues that section 776.032(4) “work[s] a significant transformation of the
immunity defense.” We conclude that the trial court here and the Second District
in Martin correctly concluded that section 776.032(4)—a statute that imposes a
new procedural “burden”—is procedural rather than substantive.
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
- 15 - 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, section 776.032(4) is clearly procedural law. Section
776.032(4) neither “declares what acts are crimes” nor “prescribes the punishment
therefor.” Id. Section 776.032(4) does not alter the elements of self-defense,
justifiable force, or any crime, nor does it alter the punishment for any crime.
Instead, it alters the law “which provides or regulates the steps by which,” id.,
immunity determinations are made. The statute changed the “procedure . . . for
deciding claims of immunity.” Dennis, 51 So. 3d at 459. The conclusion that
section 776.032(4) is procedural is wholly consistent with Smiley’s determination
that the statute there was substantive. Smiley also looked to Garcia, but the statute
in Smiley “alter[ed] the circumstances in which it is considered a criminal act to
use deadly force without first needing to retreat.” Smiley, 966 So. 2d at 335. That
statute thus “declare[d] what acts are crimes.” Garcia, 229 So. 2d at 238.
This Court’s civil cases do not support a conclusion that section 776.032(4)
is substantive. Unlike section 776.032(4), the statutes at issue in those cases
generally created a new substantive right or interfered with vested rights. See, e.g.,
Caple, 753 So. 2d at 54 (deeming substantive a statute that “create[d] the right” for
a commercial mortgagee in a foreclosure action to petition for a certain remedy
before entry of a final judgment); Arrow Air, 645 So. 2d at 423-25 (concluding that
new “Whistle-Blower’s Act” could not retroactively “impose liability for a
- 16 - termination that occurred prior to its effective date” absent “clear evidence of
legislative intent,” because the law “creat[ed] a new cause of action”—i.e., a new
“substantive right” and “new liability”); Young v. Altenhaus, 472 So. 2d 1152,
1153-54 (Fla. 1985) (concluding that a new statute “which authorizes the trial court
to award a reasonable attorney’s fee to the prevailing party in a malpractice action”
was substantive and could not be applied retroactively “to causes of action that
accrued prior to that statute’s effective date” in part because the statute “constitutes
‘a new obligation or duty’ ” that interfered with “rights” that “vested prior to the
effective date” (quoting McCord v. Smith, 43 So. 2d 704, 709 (Fla. 1949)); Walker
& LaBerge, Inc. v. Halligan, 344 So. 2d 239, 240, 243 (Fla. 1977) (concluding that
a defendant could rely on a statutory immunity from suit that was in effect at the
time of the allegedly negligent conduct but that was later withdrawn, because the
statutory changes worked a “modification of fundamental substantive rights” that
had “vested” and could not “be retroactively withdrawn”).
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. Section
776.032(4) merely altered “the method of conducting litigation involving” that
right. Caple, 753 So. 2d at 54 (quoting Haven Federal Savings & Loan Ass’n v.
Kirian, 579 So. 2d 730, 732 (Fla. 1991)). Although section 776.032(4) imposed a
- 17 - new procedural “obligation” on the State, it did not—unlike in Altenhaus—
substantively impose any new obligation or duty with respect to any underlying
conduct. Indeed, it imposed on the State a lesser burden than the State otherwise
already has at trial with respect to the same “factual question.” Bretherick, 170 So.
3d at 779 (Canady, J., dissenting).
Two additional factors support the conclusion that section 776.032(4) is
procedural. First, this Court has recognized in other contexts that the burden of
proof is a procedural matter. E.g., Shaps v. Provident Life & Acc. Ins. Co., 826 So.
2d 250, 254-55 (Fla. 2002) (concluding that “in Florida the burden of proof is a
procedural issue for conflict-of-laws purposes,” and explaining why the burden of
proof is “generally” better viewed as “a procedural issue”); Walker & LaBerge,
344 So. 2d at 243 (declining to retroactively apply certain substantive amendments,
and distinguishing a case that involved the “inherently procedural” matter of the
burden of proof). Second, this Court has repeatedly referred to Stand Your Ground
immunity determinations as procedural matters, including in the context of the
burden of proof. See, e.g., Kumar v. Patel, 227 So. 3d 557, 559 (Fla. 2017) (“The
Legislature, however, did not suggest procedural mechanisms for invoking and
determining Stand Your Ground immunity.”); 4 Bretherick, 170 So. 3d at 775
4. Kumar addressed the pre-2017 version of the Stand Your Ground law.
- 18 - (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
5. Courts generally use the terms “retrospectively” and “retroactively” interchangeably. E.g., McCord, 43 So. 2d at 707.
- 19 - 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 section 776.032(4) may make it more difficult—as a
practical matter—for the State to proceed to trial, the statute in no way “attaches
new legal consequences to events completed before its enactment.” Landgraf, 511
U.S. at 270. Therefore, even if applied in a pending case, section 776.032(4) is not
truly a retrospective statute. See Smiley, 966 So. 2d at 334 (“[S]tatutes relating to
remedies or modes of procedure . . . do not come within the legal conception of a
retrospective law . . . .” (quoting Catinella, 129 So. 2d at 136)). As Landgraf
noted, procedural matters generally—but not always—do not “rais[e] concerns
about retroactivity”:
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 US.C. § 1404(a) governed the transfer of an
- 20 - 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 section 776.032(4) was intended to and does apply in this
“commonsense” and “ordinar[y]” manner. Id. That is, the statute applies to those
immunity hearings, including in pending cases, that take place on or after the
statute’s effective date. This application of section 776.032(4)—essentially, giving
the statute prospective application—finds support in decisions from this Court.
- 21 - 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 section
776.032(4) is procedural but then seemingly gave the statute “a true retroactive
- 22 - 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 section 776.032(4) to undo pre-effective-
date immunity hearings. See Orme v. State, 25 So. 3d 536, 547 (Fla. 2009)
(“[U]nder the rules of statutory construction, there must be a clear expression of
intended retrospective application.”); see also Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 261 (2012) (“As a general, almost
invariable rule, a legislature makes law for the future, not for the past. . . . Statutes,
by contrast [to judicial opinions], typically pronounce what the law becomes when
the statutes take effect. This point is basic to our rule of law.”).
Indeed, the legislation on its face is plainly forward-looking. Section
776.032(4) provides that the procedures apply “once a prima facie claim of self-
defense immunity from criminal prosecution has been raised by the defendant at a
pretrial immunity hearing.” And the chapter law creating section 776.032(4)
provides that the “act shall take effect upon becoming a law.” Ch. 2017-72, § 2,
Laws of Fla. Although this Court has rejected “the unbending principle that the
inclusion of an effective date in a statute will always supersede the clearly
expressed legislative intent that the statute be applied retroactively,” Metropolitan
Dade, 737 So. 2d at 502, here there is no such “expressed legislative intent.”
- 23 - Article X, Section 9
Article X, section 9 does not prevent section 776.032(4) from applying in
pending cases to immunity hearings that take place on or after the statute’s
effective date. Although article X, section 9 uses the term “criminal statute,” the
caselaw reflects that the application of the provision largely turns on whether the
statute at issue is substantive or procedural. E.g., Lee, 174 So. at 590 (rejecting the
notion that the predecessor to article X, section 9 prevented the application in a
pending case of a new statute “dealing with a question of procedure”). Smiley
itself noted that the constitutional provision “imposes a restriction on retroactive
application of criminal legislation.” Smiley, 966 So. 2d at 336. And as explained
above, the mere application of a new procedural statute—like section 776.032(4)—
in a pending case is not a retroactive application. Article X, section 9 is not
applicable here. But because Smiley contains arguably broad language, we review
the relevant caselaw.
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. Section 776.032(4)
on some level can be said to “deal . . . with crime.” Id. But that is true of course
for just about any statute in the many chapters of the Florida Statutes addressing
- 24 - “crimes.” Smiley itself—despite quoting Dowling—clearly based its conclusion
regarding article X, section 9 on more specific reasoning, namely that the statute at
issue provided “a new affirmative defense” and thus the defendant could no longer
“be prosecuted in the same manner.” Smiley, 966 So. 2d at 337. That reasoning is
consistent with this Court’s other caselaw, which reveals that the constitutional
provision addresses statutes that go to the essence of the underlying crime or the
character or degree of punishment. Section 776.032(4) impacts neither. We thus
disagree with the Third District that Love “could not be prosecuted in the same
manner as before.” Love, 247 So. 3d at 613.
In State v. Watts, 558 So. 2d 994, 995-96, 998 (Fla. 1990), this Court
addressed whether article X, section 9 precluded application of a Youthful
Offender Act amendment that limited the maximum punishment that could be
imposed upon a defendant who had been sentenced as a youthful offender and who
subsequently violated community control. The amendment went into effect after
the original offense but before the community-control violation. Id. at 998. Watts
determined that the amendment applied, reasoning in part that the amendment did
not impact “the statutes that defined the original offense and sentence” and “had no
direct connection to the original conviction or sentence.” Id. at 999. Watts looked
to Ex parte Pells, 9 So. 833 (Fla. 1891), in which this Court interpreted “the
predecessor to article X, section 9.” Watts, 558 So. 2d at 999. Pells concluded that
- 25 - 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 section 776.032(4) alters “the essence of” any crime, affirmative
defense, or punishment. Id.
- 26 - 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 section 776.032(4) does not
“affect . . . punishment.” Id. at 591. As Mathis explained, the constitutional
provision generally does not encompass “remedy or procedure . . . for the
prosecution and punishment of offenses” but rather relates “to the essence of the
offense itself.” Mathis, 12 So. at 687. And as Lee reiterated post-Dowling: “We
are dealing with a question of procedure . . . .” Lee, 174 So. at 590. Section
776.032(4) presents a question of procedure.
- 27 - IV. CONCLUSION
Section 776.032(4) is a procedural change in the law and applies to all Stand
Your Ground immunity hearings conducted on or after the statute’s effective date.
In Love, the pretrial hearing took place after the effective date of section
776.032(4) and should have been conducted under the new standard. Accordingly,
we quash Love and remand for further proceedings consistent with this opinion. In
the certified conflict case of Martin, the pretrial hearing was properly conducted
under Bretherick. We thus disapprove Martin’s decision to order a new hearing.
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,
- 28 - 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, Florida,
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 League of Prosecutors – Florida
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 Prevent Gun Violence
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 Everytown for Gun Safety and Brady Center to Prevent Gun Violence
Ricardo J. Bascuas, Coral Gables, Florida,
for Amicus Curiae University of Miami School of Law – Federal Appellate Clinic
- 29 -