By JIM SAUNDERS NEWS SERVICE OF FLORIDA
From – Sunshine State News
With lower courts split on the issue, the Florida Supreme Court said Tuesday it will take up a question about whether a 2017 change to the state’s “stand your ground” self-defense law should apply to older cases.
The controversial 2017 change shifted a key burden of proof in “stand your ground” cases — a shift that can play a role in determining whether people claiming self-defense should be shielded from prosecution. But two appellate courts have split about whether the change should apply to defendants who were arrested before the 2017 law took effect but whose cases were pending.
The Supreme Court on Tuesday agreed to hear the case of Tashara Love, who sought to use the self-defense law to be shielded from prosecution in a November 2015 shooting incident outside a Miami-Dade County nightclub. The 3rd District Court of Appeal last month ruled that the 2017 burden-of-proof change should not apply retroactively to Love’s case.
In asking the Supreme Court to hear the case, Love’s attorneys pointed to potentially broad implications.
“This case presents an issue of statewide importance impacting countless criminal prosecutions: whether the 2017 amendment to the Stand Your Ground law applies to all pending cases or only those arising after its enactment,” the attorneys wrote in a brief.
As is common, the Supreme Court’s order Tuesday accepting the case dealt only with procedural issues. But all five justices involved in deciding whether to take up the case — Chief Justice Jorge Labarga and justices Barbara Pariente, R. Fred Lewis, Charles Canady and Ricky Polston — agreed on hearing it.
The “stand your ground” law says people are justified in using deadly force and do not have a “duty to retreat” if they believe it is necessary to prevent death or great bodily harm. When the defense is successfully raised in pre-trial hearings, defendants are granted immunity from prosecution.
Before the 2017 change, the Supreme Court had ruled that defendants had the burden of proof in pre-trial hearings to show they should be shielded from prosecution. But with backing from groups such as the National Rifle Association, lawmakers shifted the burden from defendants to prosecutors to prove whether self-defense claims are justified. By placing the burden on prosecutors, the new version of the law could help at least some defendants in “stand your ground” cases.
While the 3rd District Court of Appeal ruled that the change should not be applied retroactively, the 2nd District Court of Appeal this spring took the opposite position in a Hillsborough County case.
A panel of the 2nd District Court of Appeal said the burden-of-proof change should apply retroactively to Tymothy Ray Martin, who was convicted of felony battery in a 2016 altercation involving his girlfriend. Martin appealed his conviction, and the appeal was pending when the 2017 burden-of-proof change took effect.
Martin’s case also is at the Supreme Court. Amid the conflicting rulings, Attorney General Pam Bondi’s office agreed that the Supreme Court should resolve the retroactivity issue — though it suggested justices hear the Martin case instead of the Love case.
“(Courts) of the Third District are forbidden from applying Florida’s Stand Your Ground amendment retroactively, while courts of the Second District must apply it retroactively to all pending cases,” attorneys in Bondi’s office wrote in a brief this month. “This constitutes the requisite ‘express and direct conflict’ that the (Supreme) Court’s conflict jurisdiction is designed to resolve.”