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Rosario v. State

District Court of Appeal of Florida, First District.

Jun 11, 2015

Judgment

Subsequent
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Rosario v. State, No. 1D14–4973 (Fla. 1st DCA Jun. 11, 2015) — Structured Summary

Factual and Procedural Background

In 2011 petitioner Jefrey Rosario was charged with two counts of attempted first-degree murder and two drug-related counts arising from an incident on July 6, 2011. In 2013 Rosario filed a pretrial motion to dismiss the attempted murder counts asserting immunity from prosecution under Florida's Stand Your Ground law, citing section 776.012 (2011) and section 776.032 (2011). Rosario's motion described his presence in a car during a drug transaction that turned into an attempted robbery of his friend; Rosario alleges he took a gun that was handed to him and fired after hearing a gunshot and his friend saying, "They got me." He contended his use of deadly force was justified because he reasonably believed it was necessary to prevent imminent death, great bodily harm, or the imminent commission of a forcible felony.

The State moved to strike Rosario's motion, arguing that the 2014 amendments to the Stand Your Ground statute (House Bill 89) prohibited assertion of immunity by persons engaged in criminal activity at the time of the shooting. The trial court agreed with the State and denied the motion to dismiss, concluding the HB 89 amendments could be applied retroactively as mere clarifications of existing law. Rosario petitioned this Court for a writ of prohibition seeking to quash the trial court's order and to obtain a remand for an evidentiary hearing on his motion to dismiss. The State conceded that retroactive application of HB 89 was erroneous but argued the petition for writ of prohibition was the wrong procedural vehicle and that certiorari would have been appropriate but was untimely.

Legal Issues Presented

Whether the trial court impermissibly applied the 2014 amendments to the Stand Your Ground statute (HB 89) retroactively to conduct arising in 2011.
Whether a petition for writ of prohibition is an appropriate remedy to challenge a trial court's denial of a motion to dismiss claiming Stand Your Ground immunity when the denial occurred without an evidentiary hearing.
Whether Rosario was entitled to an evidentiary hearing on his pretrial motion asserting Stand Your Ground immunity under the 2011 version of the statute.

Arguments of the Parties

Petitioner's Arguments

Rosario argued the trial court impermissibly applied the 2014 HB 89 amendments retroactively to his 2011 shooting and therefore erroneously denied his motion to dismiss invoking Stand Your Ground immunity.
He sought quashal of the trial court's order and a remand for an evidentiary hearing on the merits of his motion to dismiss under the 2011 law.
Implicitly, Rosario treated the denial without an evidentiary hearing as an error that affected the trial court's continuing jurisdiction to proceed to trial.

Respondent's (State's) Arguments

The State conceded the trial court erred in applying the 2014 statutory amendments retroactively but argued that a petition for writ of prohibition was an inappropriate procedural vehicle for relief.
The State contended that certiorari review would have been the proper remedy to correct the denial, but that a certiorari petition would be untimely because it must be filed within 30 days of rendition of the order (and Rosario's filing was outside that limit).
The State argued prohibition is a preventative, not corrective, remedy and therefore would not lie to correct an already-occurring erroneous denial; it characterized the present matter as corrective rather than preventative.
The State also argued Rosario never expressly contested the court's jurisdiction, suggesting a jurisdictional challenge was not raised.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Peterson v. State, 983 So.2d 27, 29 (Fla. 1st DCA 2008)	Stand Your Ground law establishes a true immunity from prosecution, not merely an affirmative defense.	The court cited Peterson to explain the substantive nature of Stand Your Ground as immunity that supports pretrial dismissal when applicable.
Mederos v. State, 102 So.3d 7, 11 (Fla. 1st DCA 2012)	Procedure for raising immunity: file a pretrial motion to dismiss under Fla. R. Crim. P. 3.190(b); when claiming immunity, the trial court is to conduct an evidentiary hearing to resolve factual disputes.	The court relied on Mederos to explain the required pretrial procedure and to justify remanding for an evidentiary hearing on Rosario's motion.
Dennis v. State, 51 So.3d 456, 461–64 (Fla. 2010)	Supports the requirement of an evidentiary hearing to resolve factual disputes when Stand Your Ground immunity is claimed.	Used as additional authority for the proposition that an evidentiary hearing is the proper mechanism to resolve factual disputes underlying an immunity claim.
Little v. State, 111 So.3d 214, 216 n.1 (Fla. 2d DCA 2013)	Demonstrates that certiorari petitions seeking review of denial of motions to dismiss based on immunity have been treated as writs of prohibition; the supreme court has held prohibition appropriate for reviewing orders denying motions to dismiss in criminal prosecutions based on immunity.	The court cited Little to support its conclusion that prohibition is an appropriate vehicle in this context and to justify treating Rosario's petition as properly filed for relief.
Joseph v. State, 103 So.3d 227, 229 (Fla. 4th DCA 2012)	The question of whether a defendant is immune from prosecution may be framed as whether the trial court has jurisdiction to try him.	The court invoked Joseph to reject the State's contention that Rosario's failure to label his challenge as a jurisdictional one barred review; the court treated the immunity claim as implicating jurisdiction.
Prof'l Roofing & Sales, Inc. v. Flemmings, 138 So.3d 524, 525 (Fla. 3d DCA 2014)	Example of other district courts granting prohibition following denial without an evidentiary hearing.	Cited as persuasive evidence that other districts have granted prohibition in analogous circumstances; used to support granting the petition.
Heilman v. State, 135 So.3d 513, 514 (Fla. 5th DCA 2014)	Another example of a district court granting prohibition after denial without an evidentiary hearing.	Used alongside other decisions to demonstrate precedent for granting prohibition in similar situations.
Dorsey v. State, 149 So.3d 144, 146 n.2 (Fla. 4th DCA 2014)	Authority indicating a defendant is entitled to the version of the statute in effect at the time of the relevant conduct; supports non-retroactivity of HB 89 to 2011 conduct.	The court relied on Dorsey to conclude Rosario was entitled to application of the 2011 statute rather than the 2014 amendments.
McGriff v. State, 160 So.3d 167, 168–69 (Fla. 1st DCA 2015)	Also supports non-retroactive application of the 2014 amendments to cases arising before HB 89's effective date.	Applied as authority for treating the 2011 statutory regime as controlling for the 2011 shooting at issue here.

Court's Reasoning and Analysis

The court's analysis proceeds in several connected steps, each anchored to the record and to cited authority:

Retroactivity: The court accepted the State's concession that applying the HB 89 amendments (effective June 20, 2014) to a 2011 shooting was erroneous. The court relied on cited district-court authority (Dorsey and McGriff) to conclude Rosario was entitled to the 2011 statutory framework, which did not preclude claiming Stand Your Ground immunity while engaged in unlawful activity.
Remedy and procedural vehicle: The State argued the petition for writ of prohibition was improper and that certiorari review would be the right remedy; however, the court explained certiorari petitions are subject to a 30-day jurisdictional filing deadline and that Rosario's filing was untimely. The court also explained its discretionary ability under Fla. R. App. P. 9.040(c) to treat an improper remedy as the correct one, but acknowledged it could not transform the petition into an untimely certiorari petition. Consequently, the court considered whether prohibition was an appropriate remedy.
Nature of Stand Your Ground and role of evidentiary hearing: The court recited the principle that Stand Your Ground establishes an actual immunity (citing Peterson), not merely an affirmative defense, and that the established procedure is a pretrial motion to dismiss under Rule 3.190(b) followed by an evidentiary hearing to resolve factual disputes (citing Mederos and Dennis). Because an evidentiary hearing is the proper mechanism, denial of a motion to dismiss without such a hearing can implicate whether the trial court retains jurisdiction to try the defendant.
Prohibition as preventative relief: The court rejected the State's narrow characterization of prohibition as only preventative and not corrective. The court reframed the alleged error as the trial court's denial of the motion to dismiss without an evidentiary hearing and explained that the true harm would be the trial court's continued exercise of jurisdiction over a defendant who may be immune. Viewed in that light, the petition for writ of prohibition sought to prevent further, improper exercise of judicial power and was therefore a suitable preventative remedy.
Jurisdictional framing despite wording: The court refused to penalize Rosario because he did not expressly use the word "jurisdiction." Relying on Joseph, the court observed that an immunity question can be framed as a jurisdictional one, so a failure to use the specific term should not bar relief.
Authority from other districts: The court pointed to other district-court decisions that granted prohibition following denials without an evidentiary hearing (e.g., Professional Roofing & Sales; Heilman) and used those as additional support for allowing Rosario's petition to be considered and granted.

Holding and Implications

GRANTED. The Court granted the petition for writ of prohibition and remanded the matter to the trial court for an evidentiary hearing on the petitioner's pretrial motion asserting Stand Your Ground immunity.

Implications:

Direct effect on the parties: The trial court is prohibited from proceeding to try Rosario on the challenged charges without first conducting an evidentiary hearing on his claim of immunity under the 2011 version of section 776.012. The trial court's prior denial of the motion to dismiss based on retroactive application of HB 89 is vacated insofar as it prevented an evidentiary hearing under the 2011 statute.
Broader precedent: The opinion relies on existing case law to articulate procedure and remedy but does not announce a new legal doctrine beyond applying settled principles (Stand Your Ground as immunity; requirement of an evidentiary hearing; availability of prohibition in appropriate circumstances). The opinion does not purport to create new precedent beyond applying those established authorities.

Disposition: Petition for writ of prohibition granted; remanded for an evidentiary hearing. WETHERELL and OSTERHAUS, JJ., concur.

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ROBERTS

Anabelle Dias and Kevin Robert Alvarez of Anabelle Dias, P.A., Tallahassee, for Petitioner. Pamela Jo Bondi, Attorney General; Trisha Meggs Pate and Kathryn Lane, Assistant Attorneys General; and Courtney Frazier, Assistant State Attorney, Tallahassee, for Respondent.
ROBERTS, J.

In 2011, the petitioner, Jefrey Rosario, was charged with two counts of attempted first-degree murder, one count of possession of a controlled substance with intent to sell, and one count of possession of drug paraphernalia all arising out of an incident on July 6, 2011. In 2013, the petitioner filed a motion to dismiss the attempted murder charges, claiming immunity from prosecution under Florida's Stand Your Ground law, section 776.032, Florida Statutes (2011). The motion stated that the petitioner was present at a drug deal that went awry when two men attempted to rob the petitioner's friend while the petitioner sat in the front seat of a car playing with his phone. The petitioner claimed to have heard a “pow” and his friend saying, “They got me,” after which he took a gun that was handed to him and fired. The petitioner argued that his use of force was justified under section 776.012, Florida Statutes (2011), because he reasonably believed firing the gun was necessary to prevent imminent death, great bodily harm, and also the imminent commission of a forcible felony.

.Section 776.012(1), Florida Statutes (2011), provided:
A person is justified in using 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. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that 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; or

(2) Under those circumstances permitted pursuant to s. 776.013.

The State moved to strike the motion to dismiss on the grounds that the 2014 amendments to Florida's Stand Your Ground law in House Bill 89 (HB 89) prohibited the petitioner from asserting immunity where he was engaged in criminal activity at the time of the shooting. In a September 5, 2014, order, the trial court agreed with the State and denied the motion to dismiss. The trial court found that the petitioner had not disputed the criminal activity and that the amendments in HB 89 could be applied retroactively to the petitioner's case because the changes were merely a clarification of existing law, not a substantive change in the law. On October 28, 2014, the petitioner filed a petition for writ of prohibition in this Court.

On June 20, 2014, the Governor signed into law the HB 89 amendments to section 776.012, Florida Statutes (2014), which now provides, in relevant part:
(2) A person is justified in using or threatening to use the use of deadly force and does not have a duty to retreat 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. or (2) 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. Under those circumstances permitted pursuant to s. 776.013.

The petition argued that the trial court impermissibly applied the 2014 amendment to section 776.012, Florida Statutes (2014), retroactively to his case, resulting in the erroneous denial of his motion to dismiss. The petition asked this Court to quash the order denying his motion to dismiss and remand for a hearing on the merits of the motion. The State's response conceded that the trial court erred in retroactively applying the 2014 amendments to the petitioner's case; however, it argued that a petition for writ of prohibition was an inappropriate vehicle by which to raise the issue. The State suggested that a petition for writ of certiorari was the appropriate vehicle, but argued that this Court could not treat the instant petition as such because it was filed outside of the jurisdictional time limits for certiorari. We disagree.

This Court typically has the discretion, under Florida Rule of Appellate Procedure 9.040(c), to treat an improper remedy as if the correct remedy had been sought. The rule also provides that it is not the responsibility of the Court to seek the correct remedy. Unlike prohibition, which is not one of the extraordinary remedies that is subject to a jurisdictional time limit, a petition for writ of certiorari must be filed within 30 days of rendition of the order to be reviewed. SeeFla. R.App. Pro. 9.100(c)(1). Here, the order was rendered on September 5, 2014, and the petition was not filed until October 28, 2014. Thus, we cannot simply treat the petition as one for certiorari as it would have to be dismissed as untimely and outside of this Court's jurisdiction.

Florida's Stand Your Ground law is intended to establish a true immunity from charges and does not exist as merely an affirmative defense. See Peterson v. State, 983 So.2d 27, 29 (Fla. 1st DCA 2008). The procedure for raising immunity under section 776.032 is to file a pretrial motion to dismiss under Florida Rule of Criminal Procedure 3.190(b). See Mederos v. State, 102 So.3d 7, 11 (Fla. 1st DCA 2012). When a defendant claims Stand Your Ground immunity, a trial court “is to conduct an evidentiary hearing, the purpose of which is to consider factual disputes.” Id. See also Dennis v. State, 51 So.3d 456, 461–64 (Fla.2010). Typically, a denial of a motion to dismiss on Stand Your Ground immunity comes before this Court following an evidentiary hearing. In these cases, a writ of prohibition is the proper vehicle by which to challenge the denial of the motion. See Mederos, 102 So.3d at 11.

Prohibition is an extraordinary remedy that is used by the discretion of the reviewing court to restrain the unlawful exercise of jurisdiction by a lower tribunal. In the context of the denial of a motion to dismiss on Stand Your Ground immunity, prohibition has typically been the preferred remedy because the issue involves a determination of whether the circuit court has continuing jurisdiction over the defendant. See Little v. State, 111 So.3d 214, 216 n. 1 (Fla. 2d DCA 2013) (treating a petition for certiorari seeking review of an order denying a motion to dismiss on Stand Your Ground immunity following an evidentiary hearing as a writ of prohibition, “which the supreme court has consistently held is an appropriate vehicle to review orders denying motions to dismiss in criminal prosecutions based on immunity.”).

In arguing against the writ of prohibition, the State suggests that prohibition is a preventative, not corrective, remedy; therefore, prohibition would not lie to correct the erroneous denial of the motion to dismiss, which has already occurred. The State argues that because this case is not seeking review of the denial on the merits, but rather seeks a correction of a trial court error resulting in the denial of due process, certiorari would be the appropriate remedy. We disagree with the State's restrictive interpretation of the error on review. Technically, the alleged error is the trial court's denial of the motion to dismiss without conducting an evidentiary hearing, but the true harm to follow the error would arise from any further improper exercise of judicial power over the petitioner. In other words, the writ of prohibition here still seeks to prohibit the trial court from continuing to exercise its jurisdiction by proceeding to trial after having removed the petitioner's Stand Your Ground defense without analyzing the applicability of that defense. Characterized this way, the petition for writ of prohibition here actually seeks a preventative, not a corrective, remedy.

The State also argues that the petitioner never contested the jurisdiction of the trial court. The failure of the petitioner to use the term “jurisdiction” should not function as a bar to considering the merits of his petition. The question of whether the petitioner is immune from prosecution may also be stated as a question of whether the trial court has jurisdiction to try him. See Joseph v. State, 103 So.3d 227, 229 (Fla. 4th DCA 2012).

Other Districts have also granted prohibition following the denial of a motion to dismiss without an evidentiary hearing. See e.g., Prof'l Roofing & Sales, Inc. v. Flemmings, 138 So.3d 524, 525 (Fla. 3d DCA 2014); Heilman v. State, 135 So.3d 513, 514 (Fla. 5th DCA 2014). We decline the State's invitation to dismiss the petition for writ of prohibition as the incorrect vehicle and consider the merits of the petition.

The State has properly conceded that the trial court erred in applying the 2014 HB 89 amendments retroactively to the petitioner's case. The shooting here occurred in 2011; therefore, the petitioner was entitled to application of the 2011 version of section 776.012(1), which did not prohibit a defendant engaged in unlawful activity from attempting to seek Stand Your Ground immunity. See Dorsey v. State, 149 So.3d 144, 146 n. 2 (Fla. 4th DCA 2014); McGriff v. State, 160 So.3d 167, 168–69 (Fla. 1st DCA 2015). Accordingly, we grant the petition for writ of prohibition and remand for an evidentiary hearing on the appellant's motion to invoke Stand Your Ground immunity.

GRANTED. WETHERELL and OSTERHAUS, JJ., concur.
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