Professional Documents
Culture Documents
JARED BRETHERICK,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
______________________________________/
PAMELA JO BONDI
ATTORNEY GENERAL
KRISTEN L. DAVENPORT
ASSISTANT ATTORNEY GENERAL
Florida Bar #909130
kristen.davenport@myfloridalegal.com
WESLEY HEIDT
ASSISTANT ATTORNEY GENERAL
Florida Bar #773026
444 Seabreeze Blvd.
Fifth Floor
Daytona Beach, FL 32118
(386) 238-4990
crimappdab@myfloridalegal.com
COUNSEL FOR RESPONDENT
TABLE OF CONTENTS
TABLE OF AUTHORITIES..........................................iii
STATEMENT OF FACTS..............................................1
SUMMARY OF ARGUMENT.............................................6
ARGUMENT
THE TRIAL COURT APPLIED THE CORRECT STANDARD IN REQUIRING
THE PARTY CLAIMING IMMUNITY TO PROVE ENTITLEMENT TO SUCH
IMMUNITY, AND THE CERTIFIED QUESTION SHOULD BE ANSWERED IN
THE NEGATIVE...............................................7
CONCLUSION.....................................................33
DESIGNATION OF EMAIL ADDRESS...................................34
CERTIFICATE OF SERVICE.........................................34
CERTIFICATE OF COMPLIANCE......................................35
TABLE OF AUTHORITIES
CASES:
Boys Markets, Inc. v. Retail Clerks Union, Local 770,
398 U.S. 235 (1970) ...........................................14
Bretherick v. State,
135 So. 3d 337 (Fla. 5th DCA 2013) ..........................5,11
Brown v. Jenne,
122 So. 3d 881 (Fla. 4th DCA 2012) ............................17
Bunn v. State,
667 S.E.2d 605 (Ga. 2008) ..................................13,22
Capron v. State,
948 So. 2d 954 (Fla. 5th DCA 2007) ............................21
Chrysler Corp. v. Pitsirelos,
721 So. 2d 710 (Fla. 1998) ....................................21
Courtesy Automobile Group, Inc. v. Garcia,
778 So. 2d 1000 (Fla. 5th DCA 2001) ...........................22
Dade County School Board v. Radio Station WQBA,
731 So. 2d 638 (Fla. 1999) ....................................22
Darling v. State,
81 So. 3d 574 (Fla. 3d DCA 2012) ..............................11
Dennis v. State,
51 So. 3d 456 (Fla. 2010) ..................................ibid.
Essex Insurance Co. v. Zota,
985 So. 2d 1036 (Fla. 2008) ...................................14
Gentile v. Bauder,
718 So. 2d 781 (Fla. 1998) ....................................17
Girten v. Andreu,
698 So. 2d 886 (Fla. 3d DCA 1997) .............................22
Goldenberg v. Sawczak,
791 So. 2d 1078 (Fla. 2001) ...................................23
iii
Gray v. State,
13 So. 3d 114 (Fla. 5th DCA 2009) .............................11
Hair v. State,
17 So. 3d 804 (Fla. 1st DCA 2009) .............................11
Hawley v. Kansas Department of Agriculture,
132 P.3d 870 (Kan. 2006).......................................27
Henderson v. State,
135 So. 3d 1092 (Fla. 2d DCA 2013) ............................21
Joseph v. State,
103 So. 3d 227 (Fla. 4th DCA 2012) ............................11
Little v. State,
111 So. 3d 214 (Fla. 2d DCA 2013) .............................11
Loza v. State,
325 N.E.2d 173 (Ind. 1975) ....................................18
Malu v. Security National Insurance Co.,
898 So. 2d 69 (Fla. 2005) .....................................14
Martin v. Ohio,
480 U.S. 228 (1987) ...........................................30
McDade v. State,
114 So. 3d 465 (Fla. 2d DCA 2013) .............................21
Munoz v. State,
629 So. 2d 90 (Fla. 1993) .....................................21
North Fla. Women's Health and Counseling Services, Inc. v.
State,
866 So. 2d 612 (Fla. 2003) ................................12, 13
Pages v. SelimanTapia,
134 So. 3d 536 (Fla. 3d DCA 2014) .............................11
Paprocki v. Foltz,
869 F.2d 281 (6th Cir. 1989) ..................................30
iv
Parker v. Rudek,
2010 WL 5661429 (W.D. Okla. Dec. 30, 2010),
report adopted, 2011 WL 308369 (W.D. Okla. Jan. 27, 2011) .....17
People v. Guenther,
740 P.2d 971 (Colo. 1987) .............................9,16,20,25
Peterson v. State,
983 So. 2d 27 (Fla. 1st DCA 2008) ..........................ibid.
Pfeil v. Smith,
900 P.2d 12 (Ariz. Ct. App. 1995) .............................18
Professional Roofing and Sales, Inc. v. Flemmings,
138 So. 3d 524 (Fla. 3d DCA 2014) .............................11
Rodgers v. Commonwealth,
285 S.W.3d 740 (Ky. 2009) ............................23,24,25,26
Smith v. United States,
133 S. Ct. 714 (2013) .........................................30
State v. Curry,
752 S.E.2d 263 (S.C. 2013) ....................................17
State v. Duncan,
709 S.E.2d 662 (S.C. 2011) .................................13,22
State v. Gray,
654 So. 2d 552 (Fla. 1995) ....................................12
State v. J.P.,
907 So. 2d 1101 (Fla. 2004) ...................................12
State v. Jones,
311 P.3d 1125 (Kan. 2013) .....................................28
State v. Ultreras,
295 P.3d 1020 (Kan. 2013) ...............................26,27,28
Strand v. Escambia County,
992 So. 2d 150 (Fla. 2008) ....................................13
Telemundo Network Group, LLC v. Azteca International Corp.,
957 So. 2d 705 (Fla. 3d DCA 2007) .............................22
v
vi
STATEMENT OF FACTS
The State submits the following additions/corrections to
the Petitioners Statement of Facts:
Petitioner was charged by information with one count of
aggravated assault with a firearm. (R. 8).
He filed a motion to
which
the
two
sides
presented
testimony
from
two
Petitioner
himself.
(R.
157-295).
After
considering
written and oral arguments from the parties, the trial court
entered a lengthy order denying the motion.
(R. 113-117).
In
(R. 116).
Petitioner timely sought review of this decision by filing
a petition for writ of prohibition in the Fifth District Court
of Appeal, arguing that the trial court erred in denying his
claim
of
immunity.
The
appellate
court
affirmed
the
trial
evidence
is
presented
at
the
preliminary
hearing.
SUMMARY OF ARGUMENT
The trial court applied the correct burden of proof in
evaluating
the
Petitioners
pretrial
claim
of
immunity
from
from
this
Court
and
all
the
district
courts.
The
ARGUMENT
THE TRIAL COURT APPLIED THE CORRECT STANDARD IN
REQUIRING THE PARTY CLAIMING IMMUNITY TO PROVE
ENTITLEMENT TO SUCH IMMUNITY, AND THE CERTIFIED
QUESTION SHOULD BE ANSWERED IN THE NEGATIVE.
The certified question asks this Court to determine which
party has the burden of proof at a pretrial hearing where the
defendant
is
claiming
Ground statute.
immunity
under
Floridas
Stand
Your
In enacting the
for
law-abiding
people
to
protect
themselves,
their
prosecution
or
civil
action
for
acting
in
defense
of
immunity
applied,
it
did
not
explicitly
provide
the
that
best
effectuate[]
the
intent
of
the
defendant
may
raise
the
question
of
statutory
immunity
pretrial and, when such a claim is raised, the trial court must
determine whether the defendant has shown by a preponderance of
the evidence that the immunity attaches. Id. at 460 (quoting
Peterson
v.
State,
983
So.
2d
27
(Fla.
1st
DCA
2008)).
unless
otherwise,
this
established
in
and
Court
Dennis,
until
the
Legislature
should
maintain
and
should
it
the
answer
determines
procedures
the
it
certified
Id. at
28-29.
under
3.190(c)(4),
with
any
disputed
facts
defeating
Id.
to
the
substantive
legislation
and
noting
that
the
Id. at 29.
Id.
hearing
while
the
to
Dennis
evaluate
State
asked
an
immunity
this
claim
Court
to
under
evaluate
the
such
considering
Id. at 460.
these
arguments,
this
Court
conducted
an
Id. at 460-
Dennis, 51 So. 3d
at 464.
This procedure has been followed in Florida ever since.
All
five
district
courts
of
appeal
have
expressly,
and
10
expressly
rejecting
defendants
argument
that
State
Dennis
procedure
is
used
in
See, e.g.,
evaluating
immunity
in
Bretherick, 135
The State submits
that this judges concerns are unfounded and form no basis for
this Court to revisit its decision in Dennis.
Stare Decisis
This Court has repeatedly stated that the doctrine of stare
decisis is grounded on the need for stability in the law and
11
half
ago.
North
Fla.
Women's
Health
and
Counseling
argument
that
precedent
should
be
receded
from
(1)
whether
the
prior
decision
proved
to
be
utterly
without
legal
justification.
North
Fla.
12
Id. at 637-38.
Compare Strand v.
parties
and
no
changes
had
occurred
to
affect
the
this
in
Courts
practice,
decision
but
has
in
Dennis
been
has
applied
not
proven
consistently
construing
versions
statutes.
their
own
of
Stand
Your
Ground
immunity
Changing
the law at this point could call into question the validity of
numerous convictions where self defense was at issue and disrupt
a process now relatively well-honed in the trial courts.
Further, nothing has changed since Peterson and Dennis were
decided.
13
to
overturn
this
Courts
precedent
or
set
up
different
Legislatures
silence
on
this
issue
speaks
volumes.
This Court has stated that stare decisis has special force
where the legislative branch has relied upon or acquiesced in
the ruling in the prior case.
long ago:
[W]hen this Court first interprets a statute, then the
statute becomes what this court has said it is....
When the law has been settled by an earlier case then
any subsequent reinterpretation of the statute is
gratuitous
and
neither
more
nor
less
than
an
amendment:
it is no different in effect from a
judicial alteration of language that Congress itself
placed in the statute.
Boys Mkts., Inc. v. Retail Clerks Union, Local 770, 398 U.S.
235, 25758 (1970) (Black, J., dissenting) (quoted with approval
in Malu).
Moreover, this Court has stated that the legislature is
presumed
to
know
the
judicial
constructions
of
law
when
is presumed to
v.
Zota,
985
So.
2d
1036,
omitted).
14
1043
(Fla.
2008)
Essex Ins.
(quotations
Yet no new
was
any
burden
placed
on
the
prosecution
at
pretrial
argues
that
this
Courts
decision
in
Dennis
fails to honor the language of the Stand Your Ground statute and
ignores the Legislatures intent in enacting the statute.
To
the
on
contrary,
this
Court
explicitly
based
its
conclusion
15
Dennis, 51
defense
honored
that
that
goes
intent
by
beyond
an
affirmative
setting
up
procedure
defense,
that
but
allows
immunity
applies
only
if
certain
In other words,
factual
elements
are
established.
This is no different than immunity from prosecution because
of,
for
precluded
example,
if
the
double
factual
jeopardy
bar
circumstances
prosecution
are
is
established
important link:
[The
Defendant]
mistakenly
believes
that
under
[Peterson and Guenther] he would automatically enjoy
immunity as a matter of law. The two cases do nothing
of the kind.
The Oklahoma [Stand Your Ground law]
identifies circumstances in which a defendant might
enjoy immunity.
But a defendant must obviously show
facts triggering the statutory immunity. Otherwise, a
defendant could enjoy statutory immunity simply by an
incantation of the state law, without the need for any
evidence that would render the statute applicable.
Peterson and Guenther, of course, do not suggest such
16
a fanciful procedure.
Parker v. Rudek, 2010 WL 5661429, *3 (W.D. Okla. Dec. 30, 2010)
(footnotes omitted) (emphasis added), report adopted, 2011 WL
308369 (W.D. Okla. Jan. 27, 2011).
S.E. 2d 263, 266 (S.C. 2013) (Stand Your Ground statute provides
immunity
if
person
acts
in
conformity
with
statutory
requirements).
The
Petitioner
argues
that
immunity
under
section
1983
Gentile
v.
Bauder,
(government
official
burden
demonstrating
of
718
claiming
So.
2d
781,
qualified
that
he
784
immunity
was
acting
(Fla.
has
See,
1998)
initial
within
his
discretionary authority).
Further, 1983 immunity claims require a two step analysis
on two dissimilar issues.
immunity
must
that
the
officials
lacked
good
See, e.g., Brown v. Jenne, 122 So. 3d 881, 885 (Fla. 4th
17
DCA
2012).
Each
party
has
burden
on
two
very
different
factual issues.
In the Stand Your Ground setting, on the other hand, there
is only one factual question whether the totality of the facts
allowed
the
defendant
to
resort
to
deadly
force,
under
the
The two
that
stand
your
ground
immunity
is
simply
an
something
more
than
the
creation
of
an
affirmative
18
the
facts
of
proceedings.
their
situation
precludes
further
criminal
defense
can
be
considered.
Such
enhanced
protection
740
P.
2d
at
980-81
(citations
omitted)
(emphasis
added).
This rationale is equally applicable in Florida, providing
individuals
statute
trial,
with
while
claiming
true
immunity
protection
requiring
such
under
from
the
the
individuals
20
Stand
rigors
to
of
Your
a
establish
Ground
criminal
with
of
predisposition
in
claiming
subjective
entrapment);
invoking
protection
of
statute
precluding
secret
v.
State,
948
So.
2d
954,
957
(Fla.
5th
DCA
2007)
in
affirmative
the
relief,
circuit
be
the
court,
party
i.e.,
that
the
bears
party
the
seeking
burden
of
(Fla. 1998).
This general principle is applied throughout Florida law,
21
Station
WQBA,
731
2d
638,
643
(Fla.
1999)
(party
class
certification
bears
burden
of
establishing
as
well,
following
Florida
law
in
acknowledging
that
requiring
defendants
claiming
such
immunity
to
establish
most
importantly,
as
discussed
above,
the
22
response
to
statute
in
1,
Laws
2000
manner
of
Fla.
Florida
contrary
(amending
Supreme
to
burglary
Court
statute
decision
legislative
in
construing
intent).
In
the
support
of
his
argument
that
this
Court
improperly
on
two
out-of-state
cases,
from
Kentucky
and
Kansas.
the
application
Supreme
of
Court
immunity
of
Kentucky
under
their
addressed
Stand
Your
the
proper
Ground
law.
granted
pre-arrest
by
the
23
investigating
law
enforcement
officer unless there was probable cause that the force used was
unlawful, the supreme court applied that same standard to the
prosecutor
in
bringing
charges
and
to
the
trial
court
in
probable
cause
legally justified.
to
conclude
that
the
force
used
was
not
Id. at 754.1
25
defendant
in
Rodgers
51 So. 3d at 462.
affirmatively
sought
Indeed,
the
relief
at
preponderance
justified.
pretrial
of
the
hearing,
evidence
evidence
that
the
establishing
use
of
by
force
was
rest
of
the
procedure
established
there.
The
Kentucky
also
relies
on
the
decision
by
the
Kansas
the
court
found
that
the
Rodgers
rationale
was
more
in
Colorado
and
Florida,
accordingly
requiring
the
26
which
provides
that
prosecutor
may
commence
3219, however, once a defendant raises justified useof-force immunity before a court, a probable cause
determination must also include a determination that
the defendant's use of force was not justified under
K.S.A. 213211, K.S.A. 213212, or K.S.A. 213213.
Hence, the statute as written with a probable cause
standard adds an additional requirement and is
meaningful. Consequently, we find no justification to
add language not adopted by the Kansas Legislature.
Id. at 1030-31 (emphasis added).
Accordingly,
the
Kansas
court
itself
recognized
that
Floridas statute did not include the same wording and that this
Courts
decision
in
Dennis
made
sense
in
light
of
the
this
Court
to
Petitioner
is
once
again
asking
require
immunity,
but
Id.
at 1031.
pretrial
evidentiary
hearing
on
Id.
See
also State v. Jones, 311 P.3d 1125, 1133 (Kan. 2013) (noting
that once a trial has taken place, the State has already borne
an evidentiary burden far higher than the probable cause burden
28
imposed
upon
it
by
the
StandYourGround
statute)
(emphasis
added).
In short, then, while Petitioner lauds the decisions in
Kentucky and Kansas, he does not ask this Court to actually
adopt the procedure used there, but instead picks only that
portion of the procedure advantageous to him the State bearing
the burden of proof.
willing
to
in
follow
the
revisit
the
Kentucky
Dennis
decision
procedure,
or
its
ignore
entirety
the
and
statutory
29
Indeed, the
United
States
defendant
may
Supreme
be
Court
required
to
has
explicitly
prove
his
ruled
entitlement
that
to
a
an
applies
to
self-defense
as
well
there
is
no
401, 405 (1st Cir.) (same), cert. denied, 552 U.S. 947 (2007);
Paprocki v. Foltz, 869 F.2d 281, 282 (6th Cir. 1989) (same).
In
light
of
this
holding,
then,
requiring
that
the
does
the
Dennis
procedure
compel
the
accused
to
defendant
throughout
is
the
constitutionally
criminal
process,
entitled
from
to
remain
investigation
silent
through
31
Should
this
Court
answer
the
certified
question
in
the
There
the
facts,
as
found
by
the
trial
court
and
evidence
was
presented
at
the
hearing,
Petitioners
testimony
witnesses
either
was
contradicted
including
side.
the
Simply
two
by
the
witnesses
stated,
the
testimony
who
trial
had
judge
of
no
other
ties
found
to
that
was erroneous.
The judge did exactly what he was required to do under
Dennis.
While
there
may
have
been
evidence
supporting
32
Petitioner
was
not
acting
in
self
prevent
forcible
felony
at
the
defense
time
of
or
attempting
to
the
offense,
but
authority
factual
to
revisit
these
findings,
where
those
33
no
question
reason
should
to
be
revisit
answered
that
in
decision.
the
negative,
The
and
certified
the
lower
crimappdab@myfloridalegal.com
CERTIFICATE OF SERVICE
34
35