Third District Court of Appeal
State of Florida
Opinion filed January 19, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-2107
Lower Tribunal No. F15-15649
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Justin Bailey,
Petitioner,
vs.
The State of Florida,
Respondent.
On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade
County, Mavel Ruiz, Judge.
Grande Law, P.A., and Stacy Marczak-Grande, Valiente, Carollo &
McElligott, PLLC, and Matthew McElligott, for petitioner.
Ashley Moody, Attorney General, and Brian H. Zack, Assistant
Attorney General, for respondent.
Before SCALES, HENDON, and MILLER, JJ.
MILLER, J.
Petitioner, Justin Bailey, is charged with two counts of second-degree
murder in violation of sections 782.04(2) and 775.087, Florida Statutes
(2015). Through the instant petition, he contends that, despite having fully
litigated a Stand Your Ground immunity motion, he is entitled to a new
immunity hearing where the State will bear the burden of proof in accordance
with intervening changes in the law. Finding no departure from the essential
requirements of law, we deny relief.
BACKGROUND
After he was charged with two counts of second-degree murder with a
firearm following a deadly nightclub altercation, Bailey invoked Florida’s
Stand Your Ground law, codified in section 776.032, Florida Statutes (2016),
asserting he was immune from prosecution because he was acting in self-
defense and defense of another, namely his brother. The motion was filed
and litigated prior to the 2017 statutory revision to the Stand Your Ground
law.
The trial court conducted a two-day evidentiary hearing, after which it
denied the motion, concluding that Bailey failed to meet his burden of proving
that he was entitled to immunity from prosecution. Thereafter, Bailey
pursued a writ of prohibition before this court.
2
While the petition was pending, the Florida Legislature amended
section 776.032(4), Florida Statutes. The amendment shifted the burden of
persuasion to the State and changed the quantum of proof to a clear and
convincing standard. See § 776.032(4), Fla. Stat. (2021) (“In a criminal
prosecution, once a prima facie claim of self-defense 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).”). This court then ordered supplemental briefing in the prohibition
proceedings to address whether the statutory amendment applied
retroactively but, ultimately, denied the petition. See Bailey v. State,
246 So.
3d 555 (Fla. 3d DCA 2018).
Thereafter, the Florida Supreme Court rendered its seminal decision in
Love v. State,
286 So. 3d 177 (Fla. 2019). There, the court determined the
new burden and quantum of proof would apply to “all Stand Your Ground
immunity hearings conducted on or after the statute’s effective date.” Id. at
190. After Love was decided, Bailey filed a successive immunity motion,
again alleging he acted in self-defense, but this time he sought to dismiss
the charges under the newly amended section 776.032(4), Florida Statutes.
The material facts in the motion were unchanged.
3
The trial court denied relief, finding “[t]he Florida Supreme Court’s
decision in Love [was] clearly determinative of [Bailey]’s request for a new
hearing.” Accordingly, “because [Bailey]’s immunity hearing occurred prior
to the amended statute’s effective date, the [c]ourt conclude[d] that [he] [was]
not entitled to a second immunity hearing.” The instant petition ensued.
STANDARD OF REVIEW
This court has certiorari jurisdiction to review the denial of a motion for
statutory immunity. See Rich v. State,
311 So. 3d 126, 130 (Fla. 2d DCA
2020). However, because certiorari is an extraordinary remedy, a petitioner
must establish “(1) a departure from the essential requirements of the law,
(2) resulting in material injury for the remainder of the case (3) that cannot
be corrected on postjudgment appeal.” Id. at 131 (quoting Reeves v.
Fleetwood Homes of Fla., Inc.,
889 So. 2d 812, 822 (Fla. 2004)).
ANALYSIS
Bailey persuasively argues the existence of harm irremediable on
plenary appeal. If he prevails, he will receive another opportunity to establish
immunity from prosecution; if he does not, he faces trial and the possibility
of life imprisonment. Thus, we conclude the jurisdictional threshold has been
satisfied, and we focus our analysis on whether the trial court departed from
the essential requirements of law in denying a successive immunity hearing.
4
A departure from the essential requirements of the law that will justify
issuance of this extraordinary writ requires significantly more than a
demonstration of legal error. Allstate Ins. Co. v. Kaklamanos,
843 So. 2d
885, 889 (Fla. 2003). In this regard, “[a] district court should exercise its
discretion to grant certiorari review only when there has been a violation of
a clearly established principle of law resulting in a miscarriage of justice.”
Id.
Here, Bailey contends that because he has not yet been brought to
trial, Love provides a clear directive he is entitled to a successive immunity
hearing in accord with the revised statute. Although it is well-settled that
“[c]learly established law can be derived . . . from case law dealing with the
same issue of law,” we do not interpret Love quite so broadly. State Dep’t of
Highway Safety & Motor Vehicles v. Edenfield,
58 So. 3d 904, 906 (Fla. 1st
DCA 2011).
In Love, the Florida Supreme Court considered a conflict between this
court’s opinion in Love v. State,
247 So. 3d 609 (Fla. 3d DCA 2018),
determining that the changes to the quantum and burden of proof in section
776.032(4) were substantive changes in the law not subject to retroactive
application, and the Second District Court of Appeal’s opinion in Martin v.
State,
313 So. 3d 658 (Fla. 2d DCA 2018), finding the changes procedural
in nature, thus applicable to all pending cases, including those on appeal.
5
Applying long-standing precedent, the court determined that,
historically, statutory revisions impacting the quantum and burden of proof
have been construed as procedural. Love, 286 So. 3d at 186; see Shaps v.
Provident Life & Acc. Ins. Co.,
826 So. 2d 250, 254–55 (Fla. 2002)
(concluding that in Florida the burden of proof is a procedural issue for
conflict-of-laws purposes and explaining why the burden of proof is generally
better viewed as “a procedural issue”); Walker & LaBerge, Inc. v. Halligan,
344 So. 2d 239, 243 (Fla. 1977) (declining to retroactively apply certain
substantive amendments and distinguishing a case that involved the
“inherently procedural” matter of the burden of proof). Similarly, Stand Your
Ground immunity determinations have been traditionally characterized as
procedural matters. Love, 286 So. 3d at 186; see Kumar v. Patel,
227 So.
3d 557, 559 (Fla. 2017) (“The Legislature, however, did not suggest
procedural mechanisms for invoking and determining Stand Your Ground
immunity.”); Bretherick v. State,
170 So. 3d 766, 775 (Fla. 2015) (“These
courts have adopted a procedure in which the defendant bears the burden
of proof, by a preponderance of the evidence at a pretrial evidentiary hearing,
in the context of their analogous immunity laws.”); Dennis v. State,
51 So. 3d
456, 459 (Fla. 2010) (“The trial court recognized that no procedure had yet
been enacted for deciding claims of immunity under section 776.032(1).”).
6
Then, recognizing an inconsistency in prior pronouncements relating to the
retroactivity of remedial statutes, the court observed that the application of a
new procedural statute “generally turn[s] on the posture of the case, not the
date of the events giving rise to the case.” Love, 286 So. 3d at 187.
Against this background, the court concluded that “section 776.032(4)
was intended to and does apply in [a] ‘commonsense’ and ‘ordinar[y]’
manner.” Id. at 188 (second alteration in original) (quoting Landgraf v. USI
Film Prods.,
511 U.S. 244, 275 n.29 (1994)). Therefore, the court held “the
statute applies to those immunity hearings, including in pending cases, that
take place on or after the statute’s effective date.”
Id.
In reaching this holding, the court found that in Martin, the Second
District Court of Appeal correctly deemed the changes to the quantum and
burden of proof procedural, but then seemingly gave the statute “a true
retroactive application” in ordering a new immunity hearing for a defendant
convicted prior to the statute’s effective date.
Id. (quoting Pearlstein v. King,
610 So. 2d 445, 446 (Fla. 1992)). Our high court eschewed this application,
finding “[t]he caselaw does not support such a default application of a
procedural statute. And the legislation itself is devoid of any suggestion that
the Legislature intended section 776.032(4) to undo pre-effective-date
immunity hearings.”
Id.
7
In several Love progeny decisions, our sister courts have similarly
determined that defendants in nonfinal cases are not entitled to new
immunity hearings based upon the intervening statutory change. These
decisions hinge on the fact that their immunity hearings occurred before the
effective date of the amended statute. See Catalano v. State,
298 So. 3d
689, 690 (Fla. 2d DCA 2020) (“On remand, we now conclude that Catalano
is not entitled to a new immunity hearing because his immunity hearing
occurred before the amended statute’s effective date.”); Feaster v. State,
302 So. 3d 452, 453 (Fla. 2d DCA 2020) (“On remand, we now conclude that
Mr. Feaster is not entitled to a new immunity hearing because his immunity
hearing occurred before the amended statute’s effective date.”); Nieves
Rivera v. State,
300 So. 3d 757, 759 (Fla. 4th DCA 2020) (“Based on the
supreme court’s holding that section 776.032(4) is a procedural change that
applies to all Stand Your Ground hearings conducted on or after its effective
date, and in light of the fact that Rivera’s Stand Your Ground hearing
occurred before the amended statute’s effective date, we affirm.”);
Washington v. State,
296 So. 3d 567, 568 (Fla. 1st DCA 2020) (“Because
Washington’s immunity hearing occurred before the amended statute’s
effective date, the trial court was correct to conduct the hearing under the
[previous] standard. . . .”).
8
Bailey contends that because he has yet to proceed to trial, this line of
authority is inapposite. We agree none of these cases are factually identical.
But Bailey has not cited any controlling precedent for the proposition that an
accused, having been afforded an immunity hearing prior to the statutory
amendment, is entitled to relitigate the issue by means of a new motion.
Without controlling precedent on an issue, a district court cannot conclude
that a circuit court violated a clearly established principle of law. Edenfield,
58 So. 3d at 906; see Balzer v. Ryan,
263 So. 3d 189, 191 (Fla. 1st DCA
2018); see also Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles,
87
So. 3d 712, 723 (Fla. 2012) (“[C]ertiorari jurisdiction cannot be used to create
new law where the decision below recognizes the correct general law and
applies the correct law to a new set of facts to which it has not been
previously applied.”). Given the nature of our review, this lack of a clear legal
directive is dispositive, and we conclude Bailey has failed to demonstrate
that the failure to afford him a second immunity hearing constitutes a
departure from the essential requirements of law rising to the level of a
miscarriage of justice. Accordingly, we deny the petition.
Petition denied.
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