Wonder v. State , 2011 Fla. App. LEXIS 14566 ( 2011 )

69 So. 3d 371 (2011)

James Patrick WONDER, Petitioner,
v.
STATE of Florida, Respondent.

No. 4D10-2547.

District Court of Appeal of Florida, Fourth District.

September 14, 2011.

Michael J. Entin and Frank A. Maister, Fort Lauderdale, for petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for respondent.

ON RECONSIDERATION ON MANDATE FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

James Patrick Wonder, the defendant in a criminal prosecution pending in the Broward County Circuit Court, sought certiorari review of an order denying his request for an evidentiary hearing on the issue of immunity from prosecution pursuant to section 776.032, Florida Statutes (2009) (the "Stand Your Ground" law, enacted by chapter 2005-27, section 5, at 202, Laws of Florida).

We denied the petition, holding that the trial court did not depart from the essential requirements of law by following Velasquez v. State, 9 So. 3d 22 (Fla. 4th DCA 2009), in which we had certified conflict with Peterson v. State, 983 So. 2d 27 (Fla. 1st DCA 2008), and other cases following Peterson. See Wonder v. State, 52 So. 3d 696 (Fla. 4th DCA 2010), quashed, 64 So. 3d 1208 (Fla.2011).

In Wonder v. State, 64 So.3d at 1209, the Florida Supreme Court quashed our opinion and remanded for reconsideration in light of its decision in Dennis v. State, 51 So. 3d 456 (Fla.2010). In Dennis, the supreme court disapproved our reasoning in Dennis,^[1] approved the reasoning of Peterson, and concluded that "where a criminal defendant files a motion to dismiss on the basis of section 776.032, the trial court should decide the factual question of the applicability of the statutory immunity." Id. at 457. The court stated that the procedure set forth in Peterson effectuates legislative intent. Id. at 463. In Peterson, the First District concluded that, if a defendant raises the issue of statutory immunity pretrial, the defendant has the burden of establishing the factual prerequisites of the immunity claim by a preponderance of the evidence, and the trial court must weigh the factual matters pretrial and determine pretrial whether immunity exists. 983 So. 2d at 29 (Fla. 1st DCA 2008) (citing People v. Guenther, 740 P.2d 971 (Colo. 1987)).

Accordingly, we now grant the petition, quash the order denying Defendant's request for an evidentiary hearing on the issue of immunity from prosecution, and remand for further proceedings pursuant to Dennis v. State, 51 So. 3d 456 (Fla.2010).

Petition Granted.

TAYLOR, GERBER and LEVINE, JJ., concur.

NOTES

[1] 17 So. 3d 305 (Fla. 4th DCA 2009) (holding it is proper to deny a motion to dismiss based on statutory immunity when there are disputed issues of material fact) (citing Velasquez).