CORY A. TATE
v.
STATE OF FLORIDA

Fla. 5th DCA | 2019-07-12
No. 18-0695
Wooten, J., Edwards, J., Eisnaugle, J., Sasso, J.
Florida District Court of Appeal, Fifth District (2019)

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Holding

A defendant is entitled to a new pretrial Stand Your Ground immunity hearing under the 2017 amendment to section 776.032(4), Florida Statutes, where the State bears the burden of proof.

Headnotes

[1] Under the 2017 amendment to section 776.032(4), Florida Statutes, the State bears the burden of proof in a pretrial Stand Your Ground immunity hearing, and a defendant is…

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Facts & Procedural History

Cory A. Tate was convicted by jury verdict following a trial in Orange County Circuit Court. He appealed, arguing that the 2017 amendment to the Stand…

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Topics
Retroactivity Of Statutory Amendments Stand Your Ground Law

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Opinion of the Court
Sasso

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

CORY A. TATE,

Appellant,

v. Case No. 5D18-695

STATE OF FLORIDA,

Appellee.

________________________________/

Opinion filed July 12, 2019

Appeal from the Circuit Court for Orange County, Wayne C. Wooten, Judge.

James S. Purdy, Public Defender, and Darnelle Paige Lawshe, Assistant Public Defender, Daytona Beach, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Appellant, Cory A. Tate, appeals his judgment and sentence following an adverse jury verdict, arguing that the 2017 amendment to the “Stand Your Ground” law (codified at section 776.032(4), Florida Statutes) that shifts the burden of proof from the defendant to the prosecution, should be applied to his case, entitling him to a new pretrial immunity

REVERSED AND REMANDED; CONFLICT RE-CERTIFIED.

EDWARDS, EISNAUGLE and SASSO, JJ., concur.

Footnotes
2 hearing. Based on this court’s recent decision in Fuller v. State, 257 So. 3d 521 (Fla. 5th DCA 2018), we agree that Appellant is entitled to a new immunity hearing. We therefore reverse Appellant’s convictions and remand for the trial court to conduct a new “Stand Your Ground” immunity hearing where the State will bear the burden of proof. See § 776.032(4), Fla. Stat. (2017). If, after the hearing, the trial court concludes that Appellant is entitled to immunity, it shall enter an order to that effect and dismiss the information with prejudice. If, on the other hand, the trial court determines that Appellant is not entitled to immunity from prosecution, it shall enter an order containing its findings and reinstate Appellant’s convictions. We again certify express and direct conflict with the decision of the third district in Love v. State, 247 So. 3d 609 (Fla. 3d DCA), review granted, No. SC18-747, 2018 WL 3147946 (Fla. June 26, 2018), and the decisions of the fourth district in Langel v. State, 255 So. 3d 359, 361 (Fla. 4th DCA 2018), and Hight v. State, 253 So. 3d 1137, 1143 (Fla. 4th DCA 2018).

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