RENE TOIRAN,

v.

THE STATE OF FLORIDA,

Third District Court of Appeal

State of Florida

Opinion filed November 17, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D19-911 Lower Tribunal No. F15-836 ________________

Rene Toiran, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Martin Zilber, Judge.

Rier Jordan, P.A., and Jonathan E. Jordan and Andrew F. Rier, for appellant.

Ashley Moody, Attorney General, and Ivy R. Ginsberg, Assistant Attorney General, for appellee.

Before FERNANDEZ, C.J., and SCALES and HENDON, JJ.

2

HENDON, J.

Rene Toiran (“Toiran”) appeals from his conviction and sentence for second-degree murder with a firearm. We affirm. Toiran was charged with second-degree murder with a firearm. Pursuant to Florida Rule of Criminal Procedure 3.190(b), Toiran filed a pretrial motion to dismiss, asserting that he qualifies for statutory immunity from criminal prosecution under Florida’s Stand Your Ground (“SYG”) law, section 776.032(1), Florida Statutes, because he was acting in self-defense when he shot the victim (“SYG motion”). At the time of the shooting and when Toiran filed his SYG motion, under the 2015 version of section 776.032, during an SYG immunity hearing, a defendant was required to prove by a preponderance of the evidence that he or she acted in self-defense. See Bretherick v. State, 170 So. 3d 766, 775 (Fla. 2015), superseded by statute as stated in Sparks v. State, 299 So. 3d 1 (Fla. 4th DCA 2020). However, the Florida Legislature amended section 776.032 by adding subsection (4), which became effective on June⁹, 2017, and provides as follows: In a criminal prosecution, once a prima facie claim of selfdefense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).

3

§ 776.032(4), Fla. Stat. (2017); Ch. 2017-72, § 1, Laws of Fla.; see also Derossett v. State, 311 So. 3d 880, 889 (Fla. 5th DCA 2019) (explaining that “once a defendant raises a prima facie claim of self-defense immunity under [section 776.032(4)], the State bears the burden at the pretrial immunity or Stand Your Ground hearing of proving, by clear and convincing evidence, why the defendant is not entitled to immunity from further prosecution”). In July 2017—after the effective date of section 776.032(4), Florida Statutes (2017)—the trial court conducted an evidentiary hearing on Toiran’s SYG motion. Applying the burden of proof under the 2015 version of section 776.032, the trial court denied Toiran’s motion to dismiss. Toiran then filed a petition for writ of prohibition, arguing that he is immune from prosecution under Florida’s SYG statute, section 776.032, Florida Statutes (2017). This Court noted that the lower tribunal did not have the benefit of this Court’s decision in Love v. State, 247 So. 3d 609, 612 (Fla. 3d DCA 2018), in which this Court held that the burden of proof in the 2015 version of section 776.032 continues to apply to crimes committed before the 2017 amendment adding section 776.032(4). As such, this Court denied the petition and concluded that the trial court correctly applied the 2015 version of the SYG statute when denying Toiran’s SYG motion. Toiran v. State, 256 So. 3d 948, 949 (Fla. 3d DCA 2018).

1 The Florida Supreme Court refers to this decision as Boston II.

. . . .

The First District’s opinion is well reasoned, legally sound, and in line with Dennis. The First District correctly observed that “[t]he State’s trial burden of overcoming the defendant’s selfdefense claim by proof beyond reasonable doubt is heavier than its pretrial burden of overcoming the defendant’s self-defense immunity claim by clear and convincing evidence.” Boston II, 296 So. 3d at 583 (citing Love, 286 So. 3d at 180). And thus, “a trial court’s error in applying the correct burden at the immunity hearing can be cured if the State establishes the defendant’s guilt at trial by proof beyond a reasonable doubt.” Id. As applied here, the First District properly concluded that the trial court’s failure to require the State to overcome Boston’s immunity claim with clear and convincing evidence was cured when “the State overcame Boston’s self-defense claim by meeting the heavier trial burden of proof beyond a reasonable doubt.” Id. at 583-84. In order to convict Boston at trial, the jury had to reject his claim of self-defense by concluding beyond a reasonable doubt that he did not act in self-defense. See Fla. Std. Jury Instr. (Crim.) 3.6(f)-(g). To now vacate Boston’s conviction . . . and remand for a new pretrial immunity hearing at which the State would be required to prove by the lesser standard of clear and convincing evidence that Boston did not act in self-defense would violate the statutory prohibition on reversing a judgment in the absence of error “that injuriously affected the substantial rights of the appellant.” § 924.33, Fla. Stat. (2021).

Boston, 2021 WL 4613829, *4 (footnote omitted).

Following the Florida Supreme Court’s decision in Boston, Toiran’s appellate counsel filed a notice of concession as to the claim raised in the initial brief relating to the trial court’s denial of Toiran’s SYG motion. We conclude that the concession is well taken.