NICOL MASLO

v.

THE STATE OF FLORIDA

Opinion filed May 21, 2024. Not final until disposition of timely filed motion for rehearing.

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No. 3D24-0562 Lower Tribunal No. F23-20949

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Nicol Maslo,

Petitioner,

vs.

The State of Florida,

Respondent.

On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade County, Richard Hersch, Judge. Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for petitioner. Ashley Moody, Attorney General, and Sandra Lipman, Senior Assistant Attorney General, for respondent. Before SCALES, MILLER and LOBREE, JJ. PER CURIAM.

Nicol Maslo seeks certiorari review of a March 11, 2024 trial court order

denying, as legally insufficient, his motion to dismiss asserting immunity from

criminal prosecution under sections 776.012(1) and 776.032(1) of the Florida

Statutes (2024) – Florida’s “Stand Your Ground” (SYG) law.¹ We deny the

petition because Maslo’s SYG motion failed to establish a prima facie claim

of self-defense immunity.

(1) A person is justified in using or threatening to use 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. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force. § 776.012(1), Fla. Stat. (2024). Section 776.032(1) provides, in relevant part, as follows:

(1) A person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in such conduct and is immune from criminal prosecution . . . for the use or threatened use of such force . . . unless the person against whom force was used or threatened is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and . . . the person using or threatening to use force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant. § 776.032(1), Fla. Stat. (2024).

I. Relevant Background

The State charged Maslo with aggravated assault on a law

enforcement officer with a firearm. See § 784.021(1), Fla. Stat. (2023); §

784.07(1)(e), Fla. Stat. (2023); § 775.087(4), Fla. Stat. (2023). Maslo filed

an SYG motion below that was heard by the trial court on the day Maslo’s

trial was scheduled to begin. After hearing argument of counsel, the trial

court determined that an evidentiary hearing on Maslo’s SYG motion was

unnecessary, and, citing to this Court’s opinion in State v. Moore, 337 So. 3d 876 (Fla. 3d DCA 2022), denied Maslo’s SYG motion as legally

insufficient. Maslo filed the instant certiorari petition,² and the trial court

continued the trial to allow this Court to adjudicate Maslo’s petition.

II. Analysis3

For a trial court to conduct an evidentiary SYG hearing in a criminal

prosecution – at which the State bears the burden of proving, by clear at

convincing evidence, that a defendant is not entitled to statutory immunity –

a criminal defendant must first file a pleading “alleg[ing] a facially sufficient

prima facie claim of justifiable use of force under chapter 776 . . . and present

proceed. We best proceed under our certiorari jurisdiction.” (quoting Garcia v. State, 286 So. 3d 348, 350 (Fla. 2d DCA 2019))); Jefferson v. State, 264 So. 3d 1019, 1023 (Fla. 2d DCA 2018) (“[P]etitioner challenges the procedure the circuit court employed in denying his motion to dismiss, the upshot of which was that the court denied the motion without requiring the State to put on evidence. Consequently, we cannot discern whether petitioner is entitled to immunity on the merits, and therefore prohibition is not the proper vehicle to review the alleged error.”).

For several reasons, we decline to address whether Maslo should have filed a prohibition petition rather than a certiorari petition. First, had Maslo sought prohibition rather than certiorari, the result would be the same. Second, any such analysis by this Court would be sua sponte, because neither party has advanced an argument to us related to the type of relief Maslo has sought in this Court. Finally, any such discussion by us of this issue may be rendered purely academic, and of no practical import, in light of the Florida Supreme Court’s current consideration of a petition by the Florida Bar to add nonfinal orders denying SYG motions to Florida Rule of Appellate Procedure 9.140’s schedule of orders that are appealable by a criminal defendant. See In re: Amendments to Florida Rules of Appellate Procedure 9.110, 9.130, 9.140 and 9.800, SC2024-0317. 3 The trial court’s determination on the legal sufficiency of an SYG motion presents a question of law that this Court reviews de novo. See Moore, 337 So. 3d at 880.

argument in support of that motion at a pretrial immunity hearing.” Moore,

337 So. 3d at 880-81 (quoting Jefferson, 264 So. 3d at 1028-29). Section

776.032(4) of the Florida Statutes (2024), governing “[i]mmunity from

criminal prosecution . . . for justifiable use or threatened use of force,” places

the burden on the State only after “a prima facie claim of self-defense

immunity from criminal prosecution has been raised by the defendant at a

pretrial immunity hearing . . . .”

On our de novo review, we agree with the trial court that Maslo’s SYG

motion failed to allege sufficient facts that affirmatively show or tend to show

that Maslo had a reasonable belief that Maslo’s show of force was necessary

to defend himself against some imminent use of unlawful force. See Moore,

337 So. 3d 881-82. Because Maslo failed to meet his initial burden of stating

a prima facie claim of SYG immunity, the trial court did not err in denying

Maslo’s SYG motion. Accordingly, we deny Maslo’s petition.

Petition denied.