Just something I picked up at the office recently.  Thought it might be interesting.

First and Fourth disagree on “Stand Your Ground” immunity procedure Deciding an issue that will require resolution in the Supreme Court, the Fourth and First DCAs this week issued conflicting decisions on the procedure to be used when a defendant claims immunity from prosecution based on the provisions of § 776.013, the “Stand Your Ground” statute which expanded the allowable use deadly force without retreat. •Hair v. S., ___ So. 3d ___, 34 F.L.W. D1669 (1st DCA 8/19/2009) and Govoni v. S., ___ So. 3d ___, 34 F.L.W. D1688 (4th DCA 8/19/2009).

In Hair, the First DCA reiterated its holding in Peterson v. State, 983 So. 2d 27 (Fla. 1st DCA 2008), which
required the trial court to grant a dismissal under the statute when the defendant shows entitlement to the
immunity by a preponderance of evidence, rather than under a stricter standard used to decide (c)(4) motions
to dismiss. “The ‘Stand Your Ground’ statutory immunity claim is resolved by the circuit court after a pretrial
evidentiary hearing. The defendant bears the burden to prove entitlement to the immunity by a preponderance
of the evidence. Peterson v. State, 983 So. 2d at 29. Our review of the circuit court's ruling is governed by the same standard which applies in an appeal from an order denying a motion to suppress. That is, the court's findings of fact must be supported by competent substantial evidence. Conclusions of law, however, are subject to de novo review. Hines v. State, 737 So. 2d 1182 (Fla. 1st DCA 1999).

“The material facts of this case are not in dispute. Harper, the victim, had unlawfully and forcibly entered a vehicle occupied by Germinal, Hair, and a third person in the back seat. While Harper may have been exiting the vehicle at the time of the shooting, the action was involuntary if it occurred at all. The physical evidence was clear that Harper was still inside the vehicle when he was shot. The statute makes no exception from the immunity when the victim is in retreat at the time the defensive force is employed. The trial court's denial based on disputed issues of material fact was therefore incorrect. That holding was also directly contrary to our express holding in Peterson that a motion to dismiss based on ‘Stand Your Ground’ immunity cannot be denied because of the existence of disputed issues of material fact.”

In Govoni, the Fourth DCA reiterated its support for the opposite standard, which it set forth in Velasquez
v. S., 9 So. 3d 22 (4th DCA 209). “Govoni has been charged with five counts of aggravated assault with a firearm and improper exhibition of a dangerous weapon. The charges arose out of Govoni's encounter with five young men. Govoni says he held his ‘unloaded gun in his hand’ to protect himself from ‘dope smoking trespassers.’ Relying on the statements of the victims, the state's version casts Govoni in a different light.
“Govoni filed a rule 3.190(c)(4) motion to dismiss based on section 776.032. The state filed a traverse and
argued that there were disputed factual issues as to whether there could be a reasonable belief that Govoni's
use of force was necessary under the circumstances. See § 776.031, Fla. Stat. (2008).

“The circuit judge noted that Govoni's motion was not sworn to as required by Rule 3.190(c). Also, the judge observed that he was bound by our decision in Velasquez v. State, 9 So. 3d 22, 24 (Fla. 4th DCA 2009), which held that ‘[w]hen rule 3.190(c)(4) is used as the vehicle to raise the immunity issue under section 776.032, that rule provides the procedural framework by which the court makes its determination.’ Therefore, the court was required to deny the motion, because the state's traverse placed essential material facts in dispute.

“Govoni recognizes that Velasquez required the denial  of his motion. He requests this court to certify conflict
with Peterson v. State, 983 So. 2d 27 (Fla. 1st DCA 2008), as we did in Velasquez. Accordingly, the petition
for writ of prohibition is denied and we certify conflict with Peterson.”

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