Edward Lamont Hicks v. State of Florida ( 2019 )


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  •          FIRST DISTRICT COURT OF APPEAL
    STATE OF FLORIDA
    _____________________________
    No. 1D17-1830
    _____________________________
    EDWARD LAMONT HICKS,
    Appellant,
    v.
    STATE OF FLORIDA,
    Appellee.
    _____________________________
    On appeal from the Circuit Court for Duval County.
    Waddell A. Wallace, Judge.
    June 12, 2019
    WINSOR, J.
    In 2015, Edward Hicks—then charged with attempted
    murder—argued he was entitled to Stand-Your-Ground immunity.
    At the two-day SYG hearing, he and the State presented widely
    divergent versions of events. Both sides agreed, though, that Hicks
    bore the burden of proof.
    The trial court denied the motion, concluding Hicks had not
    met his burden. The State later reduced the murder charge
    pursuant to a plea agreement, and Hicks pleaded guilty to
    aggravated battery with a deadly weapon, along with possession of
    a firearm by a convicted felon. He got seven years.
    In 2017, after Hicks initiated this appeal but before he filed
    his initial brief, the Florida Legislature amended section 776.032,
    Florida Statutes, which governs SYG immunity. Under the
    amended provision, once a criminal defendant raises “a prima facie
    claim of self-defense immunity,” then “the burden of proof by clear
    and convincing evidence is on the party seeking to overcome the
    immunity.” 
    Id. § 776.032(4).
    Before the amendment, the statute
    was silent on which side had the burden of proof, but the supreme
    court had held it was the defendant’s burden. Bretherick v. State,
    
    170 So. 3d 766
    , 775 (Fla. 2015).
    Hicks now appeals the trial court’s SYG decision. Arguing that
    the legislative change was retroactive, Hicks contends the trial
    court erred in assigning him the burden of proof. He asks us to
    reverse and instruct the trial court to reconsider the motion in
    light of the new law.
    Florida’s DCAs have split as to whether the recent legislative
    change applies to offenses committed before its enactment.
    Compare, e.g., Martin v. State, -- So. 3d. -- No. 2D16-4468 (Fla. 2d
    DCA May 4, 2018) (amendment retroactive), with Love v. State,
    
    247 So. 3d 609
    (Fla. 3d DCA) (amendment not retroactive), review
    granted, No. SC18-747, 
    2018 WL 3147946
    (Fla. Jun. 26, 2018).
    This court has sided with those arguing the change does apply to
    those offenses, see Commander v. State, 
    246 So. 3d 1303
    , 1303-04
    (Fla. 1st DCA 2018), and the conflict is pending before the Florida
    Supreme Court, Love, No. SC18-747. Although Commander held
    the change applies regardless of when the offense occurred, it does
    not address a case like this one, in which the offense and the SYG
    hearing occurred before the legislative change. 
    See 246 So. 3d at 1304
    (noting that placing burden on State was “consistent with the
    statute in effect at the time of the evidentiary hearing”). But
    regardless of the statute’s applicability in that circumstance, we
    must affirm because the sole issue Hicks now raises on appeal—
    which party had the burden—is not dispositive of his case. 1
    1   Similarly, we need not decide whether (i) Hicks’s
    affirmatively agreeing below that he had the burden and (ii) his
    failure to object to the court’s placing the burden on him provide
    alternate, independent bases to affirm. Cf., e.g., § 924.051(3), Fla.
    Stat. (“An appeal may not be taken from a judgment or order of a
    trial court unless a prejudicial error is alleged and is properly
    2
    Generally, a defendant who pleads guilty cannot challenge his
    conviction on appeal. See Fla. R. App. P. 9.140(b)(2)(A); see also
    Lewis v. State, 
    262 So. 3d 859
    , 861 (Fla. 1st DCA 2018). But a
    defendant who pleads guilty, like Hicks did, “may expressly
    reserve the right to appeal a prior dispositive order of the lower
    tribunal, identifying with particularity the point of law being
    reserved.” Fla. R. App. P. 9.140(b)(2)(A).
    The issue of who had the burden—the only issue Hicks now
    advances—is plainly not dispositive. Hicks does not ask us to hold
    that the trial court should have granted immunity; he asks only
    that we remand for “a new immunity hearing under the current
    evidentiary standard.” Init. Br. at 30. That would mean his guilty
    plea would be followed by additional evidentiary proceedings
    leading (perhaps) to another conviction or (perhaps) to a dismissal.
    preserved or, if not properly preserved, would constitute
    fundamental error.”); Smith v. State, 
    598 So. 2d 1063
    , 1066 (Fla.
    1992) (holding that decisions announcing new rules of law “must
    be given retrospective application by the courts of this state in
    every case pending on direct review or not yet final,” but explaining
    that “[t]o benefit from the change in law, the defendant must have
    timely objected at trial if an objection was required to preserve the
    issue for appellate review”); cf. also Eutzy v. State, 
    541 So. 2d 1143
    ,
    1145 (Fla. 1989) (“[T]here is nothing in Booth [v. Maryland, 
    482 U.S. 496
    (1987)] which suggests that that decision should be
    retroactively applied to cases in which the claim was not preserved
    by a timely objection”). In other words, we need not decide
    whether—as the dissent would hold—the effect of the 2017
    legislation was to invalidate judgments like Hicks’s, judgments
    that were final in the trial court before the legislation’s enactment,
    and where the defendant had raised no issue regarding the burden.
    Finally—and relatedly—we need not decide whether Hicks
    “identif[ied] with particularity” the burden issue. See Fla. R. App.
    P. 9.140; see also 
    id., comm. notes
    (“This rule also incorporates the
    holding in State v. Ashby, 
    245 So. 2d 225
    (Fla. 1971), and is
    intended to make clear that the reservation of the right to appeal
    a judgment based on the plea of no contest must be express and
    must identify the particular point of law being reserved; any issues
    not expressly reserved are waived.” (emphasis added)).
    3
    If Hicks won all the relief he seeks on appeal, he may (or may not)
    end up going to trial. And it is settled that “[a]n issue is dispositive
    only when it is clear that there will be no trial, regardless of the
    outcome of the appeal.” Williams v. State, 
    134 So. 3d 975
    , 976 (Fla.
    1st DCA 2012); accord Morgan v. State, 
    486 So. 2d 1356
    , 1357 (Fla.
    1st DCA 1986).
    If we entertained Hicks’s argument and agreed with him, we
    would have to remand for more proceedings. And that would turn
    this into precisely the type of piecemeal appeal that the rule and
    the cases that preceded it sought to prevent. See Churchill v. State,
    
    219 So. 3d 14
    , 16 (Fla. 2017) (noting that the court had “reasoned
    that the policies underlying the decision in [State v. Ashby, which
    preceded the rule] were ‘poorly served’ and ‘thwarted’ when a
    defendant was allowed to appeal nondispositive rulings because
    the defendant would still face the prospect of trial even if he or she
    prevailed on appeal, which would prolong rather than expedite
    resolution of the case”); see also Brown v. State, 
    376 So. 2d 382
    , 384
    (Fla. 1979) (“Because of the nondispositive nature of the appeal,
    the defendant faces the prospect of a trial even if he prevails on
    appeal. The inevitable is not avoided but merely postponed, thus
    further burdening the already severely taxed resources of our
    courts.”). Neither rule 9.140 nor precedent applying it would allow
    that.
    It is true that the State stipulated that the issue of whether
    Hicks was entitled to immunity was dispositive. By doing so, the
    State agreed that if we ruled on appeal that Hicks was entitled to
    immunity, the State would not pursue the case further. See
    
    Churchill, 219 So. 3d at 17
    (“[T]he stipulation of dispositiveness
    establishes that the State cannot or will not continue with its
    prosecution if the defendant prevails on appeal.”). But Hicks does
    not ask us to hold that he was entitled to immunity; he elected to
    argue only that the State should have had the burden. And the
    State certainly did not stipulate that if Hicks won an appeal about
    a nondispositive procedural matter that it would not continue to
    pursue its case. Indeed, both Hicks and the dissent presume the
    State will pursue its case: they both insist that we should remand
    4
    so that the State can do just that. 2 This only confirms that the
    issue on appeal is not dispositive of Hicks’s entire case. 3
    We must AFFIRM.4
    2 We do not understand why the dissent says we hold nobody
    can plead guilty while reserving a SYG issue. We do not. Had Hicks
    argued here that the trial court should have granted immunity, we
    would address that argument (a dispositive argument). But Hicks
    has abandoned that appellate argument, raising instead only a
    plainly nondispositive issue.
    3  We cannot accept the dissent’s view that further delay for
    supplemental briefing is warranted. Nor can we accept the
    dissent’s view that we are acting unfairly by “sua sponte rais[ing]
    new issues.” There is a difference between raising new grounds for
    reversal (which we should not do, see Anheuser-Busch Cos., Inc. v.
    Staples, 
    125 So. 3d 309
    , 312 (Fla. 1st DCA 2013)), and affirming
    based on any basis the record supports (which we must do, see
    Dade County Sch. Bd. v. Radio Station WQBA, 
    731 So. 2d 638
    , 645
    (Fla. 1999)). It is the appellant’s burden to show we must reverse,
    and he cannot meet that burden without overcoming all bases for
    affirmance. See Applegate v. Barnett Bank of Tallahassee, 
    377 So. 2d
    1150, 1152 (Fla. 1979); see also State v. Pitts, 
    936 So. 2d 1111
    ,
    1133 (Fla. 2d DCA 2006) (noting that appellate courts should
    affirm when there is a basis to do so “even if the specific basis for
    affirmance has not been articulated by the appellee”); Powell v.
    State, 
    120 So. 3d 577
    , 592 (Fla. 1st DCA 2013) (noting that
    “[c]ourts issue per curiam affirmances with regularity without
    briefing from appellees”).
    4  We have been inconsistent as to dispositions in this
    situation, sometimes dismissing for lack of jurisdiction, see, e.g.,
    K.N.B. v. State, 
    982 So. 2d 1277
    (Fla. 1st DCA 2008); Thomas v.
    State, 
    948 So. 2d 968
    , 968 (Fla. 1st DCA 2007), sometimes
    exercising jurisdiction and affirming, see, e.g., Terry v. State, 
    149 So. 3d 113
    (Fla. 1st DCA 2014); Williams v. State, 
    134 So. 3d 975
    ,
    976 (Fla. 1st DCA 2012). In Leonard v. State, the Florida Supreme
    Court said we should summarily affirm in this circumstance,
    rather than dismiss. 
    760 So. 2d 114
    , 119 (Fla. 2000); see also Paulk
    v. State, 
    765 So. 2d 147
    , 148 (Fla. 1st DCA 2000) (applying
    5
    LEWIS, J., concurs; KELSEY, J., dissents with opinion.
    _____________________________
    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
    _____________________________
    KELSEY, J., dissenting.
    Hicks lost his self-defense-immunity hearing and entered a
    plea in which both he and the State stipulated, and the lower court
    ruled, that the denial of immunity was dispositive for purposes of
    appeal under Florida Rule of Appellate Procedure 9.140(b)(2)(A)
    (allowing defendants to “expressly reserve the right to appeal a
    prior dispositive order of the lower tribunal, identifying with
    particularity the point of law being reserved”). We and other courts
    have exercised jurisdiction in this procedural posture and granted
    new immunity hearings to litigants in Hicks’s position post-plea.
    The majority nevertheless denies Hicks this relief by viewing his
    appeal narrowly as seeking only our legal ruling on retroactive
    application of the 2017 amendments to section 776.032(4), Florida
    Statutes¸ and not directly seeking our case-dispositive ruling on
    the underlying issue of immunity under the amended statute—
    which we cannot do until after the lower tribunal applies the new
    statute in the first instance, which creates a closed loop from which
    Hicks cannot escape. This overly-narrow view is factually
    inaccurate. Furthermore, legally, the majority view improperly
    equates a new immunity hearing with prosecution so as to defeat
    dispositivity under rule 9.140, or alternatively finds no
    dispositivity because of the possibility of trial if Hicks were to lose
    an immunity hearing under the new statute—overlooking that the
    State cannot prosecute Hicks after agreeing to a plea. The
    majority’s reasoning improperly creates new precedent precluding
    Leonard). But cf. 
    Churchill, 219 So. 3d at 17
    (“[T]he district courts
    have jurisdiction to review the merits of a conditional no contest
    plea when the State stipulates that an issue reserved for appeal is
    dispositive of the case.” (emphasis added)).
    6
    Hicks and similarly-situated litigants from obtaining a new
    immunity hearing under a more favorable burden and quantum of
    proof, to which they are entitled under our precedent. Moreover,
    the majority adopts this rationale sua sponte, without giving the
    parties the chance to be heard on it. Accordingly, respectfully, I
    dissent from the majority opinion as to both procedure and merits.
    I. Procedure.
    As to procedure, I dissent from the majority’s disposition of
    this appeal on grounds not preserved or ruled upon below, not
    raised in briefing, not discussed at oral argument, and adopted
    without the benefit of supplemental briefing. The majority’s
    overly-narrow view of Hicks’s argument has the effect of holding
    that orders denying self-defense immunity cannot be appealed as
    part of a plea in which such orders are stipulated to be dispositive
    under rule 9.140(b)(2)(A). In contrast to this new rule of law, the
    sole issue in briefing and oral argument was whether the 2017
    statutory amendment shifting the burden of proof to the State in
    stand-your-ground hearings should apply retroactively to this
    case, and Hicks made it clear that he was arguing the procedural
    issue to protect his substantive right to immunity. We have
    already resolved that issue in favor of retroactivity. Commander v.
    State, 
    246 So. 3d 1303
    , 1303-04 (Fla. 1st DCA 2018) (holding
    legislative change to burden of proof in stand-your-ground
    hearings applies retroactively). Our position conflicts with that of
    other district courts, and the conflict is pending before the Florida
    Supreme Court. Love v. State, 
    247 So. 3d 609
    (Fla. 3d DCA)
    (finding amendment not retroactive), review granted, No. SC18-
    747, 
    2018 WL 3147946
    (Fla. June 26, 2018). That is the sole issue
    preserved, briefed, and argued; and therefore we should rule in
    accordance with Commander, reversing and remanding for a new
    immunity hearing under the 2017 law, and certifying conflict with
    Love.
    The majority nevertheless sua sponte raises new issues and
    resolves the appeal on both legal and factual grounds the parties
    have had no opportunity to address (i.e., dispositivity in this
    context, and the scope of Hicks’s arguments on appeal).
    Furthermore, the majority disposes of the appeal on grounds
    directly contrary to an express stipulation of dispositivity and
    7
    appealability by both parties below, which the trial judge expressly
    and repeatedly approved. This is not fair to the parties, and the
    better practice would be to allow supplemental briefing prior to
    decision.
    Whether appellate courts have the authority to rule on
    grounds not preserved below and not argued on appeal is one issue,
    and whether and through what procedure they should exercise any
    such authority sua sponte is another. See, e.g., Robert Martineau,
    Considering New Issues on Appeal: The General Rule and the
    Gorilla Rule, 40 Vand. L. Rev. 1023, 1023 n.a, 1053-56 (1987)
    (noting that, like the proverbial 800-pound gorilla that can sleep
    “anywhere it wants,” an appellate court can, under certain
    circumstances, resolve issues on grounds raised sua sponte);
    Ronald Offenkranz & Aaron Lichter, Sua Sponte Actions in the
    Appellate Courts: The “Gorilla Rule” Revisited, 17 J. App. Prac. &
    Process 113, 116 n.14 (2016) (noting the exercise of sua-sponte
    review is frequently criticized as a deprivation of procedural due
    process); Allan D. Vestal, Sua Sponte Consideration in Appellate
    Review, 27 Fordham L. Rev. 477, 494 (1958) (“When considered sua
    sponte . . . [n]either [party] has had any opportunity to consider
    the matter, and both are now bound by res judicata grounded on
    considerations which represent not well reasoned positions for the
    litigants, but rather only the fortuitous decision of a wayward
    court.”) (cited with similar authorities in Miami Dade College v.
    Allen, No. 3D18-2218, 
    2019 WL 1781366
    at *4 (Fla. 3d DCA Apr.
    24, 2019) (Miller, J., specially concurring)); E. King Poor & James
    Goldschmidt, But No One Argued That: Sua Sponte Decisions on
    Appeal, DRI For the Defense, Oct. 2015, at 62 (57 No. 10)
    (collecting authorities and advocating for very limited exercise of
    sua-sponte appellate decision-making); see also Bainter v. League
    of Women Voters of Fla., 
    150 So. 3d 1115
    , 1126 (Fla. 2014) (“‘Basic
    principles of due process’—to say nothing of professionalism and a
    long appellate tradition—‘suggest that courts should not consider
    issues raised for the first time at oral argument’ and ‘ought not
    consider arguments outside the scope of the briefing process.’”)
    (quoting Powell v. State, 
    120 So. 3d 577
    , 591 (Fla. 1st DCA 2013)).
    In fairness, we should have allowed supplemental briefing on
    this issue. See, e.g., Thorlton v. Nationstar Mortg., LLC, 
    257 So. 3d 596
    , 601 (Fla. 2d DCA 2018) (noting that “no due process violation
    8
    has occurred” through the court’s reliance on a new decision
    released after conclusion of briefing, because the court allowed
    supplemental briefing on the effect of the case). Supplemental
    briefing seems especially advisable here in light of the majority’s
    creation of new precedent that places a new obstacle in the way of
    litigants seeking immunity. The underlying issue of retroactivity
    is before the Florida Supreme Court, and could become moot if the
    court decides that the 2017 amendment is prospective only; we
    have time. As the appeal now stands, Hicks is left to seek
    rehearing and rehearing en banc to overturn a decision already
    made without benefit of prior adversarial testing, to which the
    Court should be more amenable in this posture.
    II. Merits.
    A. Review of Orders Denying Self-Defense Immunity.
    (1) Prohibition. The typical method of obtaining review of
    orders denying self-defense immunity is a petition for a writ of
    prohibition, on the premise that the trial court lacks authority to
    proceed with trial. See Tynes v. State, 
    262 So. 3d 851
    , 852 (Fla. 1st
    DCA 2018) (granting petition for prohibition where trial court
    failed to give retroactive effect to 2017 SYG amendment); Rosario
    v. State, 
    165 So. 3d 852
    , 854-55 (Fla. 1st DCA 2015) (holding that
    prohibition lies to challenge denial of self-defense immunity); Little
    v. State, 
    111 So. 3d 214
    , 216 n.1 (Fla. 2d DCA 2013) (petition for
    writ of prohibition is the appropriate mechanism to challenge the
    denial of a motion to dismiss based on a self-defense immunity
    statute). Because prohibition by its very definition lies only to
    prevent the unlawful exercise of a court’s jurisdiction, prohibition
    would seem to be unavailable to litigants like Hicks who plead and
    reserve a right of immediate appeal, with the State’s agreement
    and the trial court’s approval as to dispositivity, since the plea
    agreement itself forestalls any further prosecution and trial.
    Research has revealed no cases in which prohibition was filed post-
    plea.
    (2) Plea with Reserved Appeal on Immunity. In this case,
    Hicks lost his self-defense-immunity hearing, then entered a plea
    reserving the right to appeal the denial of immunity, which the
    parties stipulated and the trial court agreed was dispositive under
    rule 9.140(b)(2)(A). We and other courts have allowed appeals post-
    9
    plea under these circumstances, when the denial of immunity was
    identified as dispositive under rule 9.140(b)(2)(A). See, e.g.,
    Whitham v. State, 
    44 Fla. L
    . Weekly D975, 
    2019 WL 1646073
    (Fla.
    2d DCA Apr. 17, 2019); Edwards v. State, 
    257 So. 3d 586
    (Fla. 1st
    DCA 2018); Arauz v. State, 
    171 So. 3d 160
    , 162 n.3 (Fla. 3d DCA
    2015); Miles v. State, 
    162 So. 3d 169
    (Fla. 5th DCA 2015); cf.
    Heredia v. State, 
    43 Fla. L
    . Weekly D2613, 
    2018 WL 6186631
    at *1
    (Fla. 3d DCA Nov. 28, 2018) (affirming pre-trial immunity ruling
    where defendant pleaded and appealed, because he did not reserve
    right to appeal).
    (3) Immunity Raised in Post-Trial Plenary Appeal. We,
    along with the Second and Fifth Districts, have held the 2017
    amendment to be retroactive; and have also entertained post-trial
    appeals raising the pre-trial denial of immunity, and requesting a
    new immunity hearing, which has been granted. Manley v. State,
    
    2019 WL 1925280
    (Fla. 2d DCA May 1, 2019); Feaster v. State, 
    44 Fla. L
    . Weekly D1103, 
    2019 WL 1868197
    (Fla. 2d DCA Apr. 26,
    2019); Horton v. State, 
    2019 WL 1781062
    (Fla. 2d DCA Apr. 24,
    2019); Rivera v. State, 
    44 Fla. L
    . Weekly D970, 
    2910 WL 1575868
    (Fla. 2d DCA Apr. 12, 2019) (noting that harmless error analysis
    is not available to defeat right to new immunity hearing; trial court
    must disregard guilty verdict); Aviles-Manfredy v. State, 
    44 Fla. L
    .
    Weekly D187, 
    2019 WL 116471
    (Fla. 1st DCA Jan. 7, 2019);
    Drossos v. State, 
    43 Fla. L
    . Weekly D2764, 
    2018 WL 6579755
    (Fla.
    2d DCA Dec. 14, 2018); Martin v. State, 
    43 Fla. L
    . Weekly D1016,
    
    2018 WL 207471
    (Fla. 2d DCA May 4, 2018); Boston v. State, 
    260 So. 3d 445
    (Fla. 1st DCA 2018); Fuller v. State, 
    257 So. 3d 521
    , 539
    (Fla. 5th DCA 2018) (reversing judgment and sentence for new
    immunity hearing applying new burden of proof). In these cases, if
    application of the new burden of proof results in a finding of
    immunity, the judgments and sentences are vacated.
    (4) Withdrawal of Plea, Followed by Prohibition. This
    avenue of review has been suggested as available when the plea
    was not knowing and voluntary, and in theory could be a remedy
    if an appellate court rejected a post-plea appeal due to a faulty
    reservation of right to appeal. See Heredia, 
    2018 WL 6186631
    at
    *1 (affirming order denying motion to dismiss under SYG law
    because appellant failed to expressly reserve right to appeal, but
    noting that he may have a right to file a motion for relief under
    10
    Fla. R. Crim. P. 3.850); Daniel v. State, 
    235 So. 3d 1003
    (Fla. 2d
    DCA 2017) (citing rule 3.850 as a potential remedy where state
    did not stipulate to dispositivity and thus appellate court
    dismissed appeal); Russ v. State, 
    230 So. 3d 510
    (Fla. 2d DCA 2017)
    (rejecting post-plea appeal for failure to have reserved right of
    appeal that appellant believed was reserved, but noting the
    availability of a motion to withdraw plea and seek relief under rule
    3.850); Werner v. State, 
    828 So. 2d 499
    (Fla. 3d DCA 2002)
    (dismissing appeal where both parties conceded the issue reserved
    was not dispositive, but allowing appellant to seek relief under
    rule 3.850); Murphy v. State, 
    149 So. 3d 1163
    (Fla. 1st DCA 2014)
    (noting possibility of motion under rule 3.850 after appeal failed
    for lack of stipulation of dispositivity); Cf. Lewis v. State, 
    251 So. 3d
    310, 311 (Fla. 2d DCA 2018) (noting the lack of any deadline for
    filing either motions to dismiss or prohibition in stand-your-
    ground cases, which the court suggested could lead to procedural
    abuse if delayed). However, the time limits on post-conviction
    relief may present an obstacle. Research has not revealed a self-
    defense-immunity case in which the defendant has withdrawn a
    plea and filed for prohibition, which an appellate court then
    entertained on the merits.
    B. This Case.
    (1) Procedure Below. This case involves category (2) above:
    a plea with reservation of right to appeal the denial of stand-your-
    ground immunity—which appeal the majority holds is unavailable
    to Hicks even though we entertained it without question in
    
    Edwards, 257 So. 3d at 586
    . The majority’s decision is thus in
    conflict with our decision in Edwards; and in express and direct
    conflict with the Second District’s decision in Whitham, 
    2019 WL 1646073
    .
    At the conclusion of Hicks’s immunity hearing on August 4,
    2016, the trial court determined that Hicks had not satisfied his
    burden of proof, and the judge stated in open court the factual basis
    on which immunity was denied. Distilled to its essence, the trial
    judge’s view of the facts was that after the initial altercation
    between Hicks and the alleged—and unarmed—aggressor, the
    aggressor withdrew, and there was a short period of inactivity,
    during which Hicks went back inside his apartment, got a gun,
    11
    came back out, and then shot the aggressor/now victim, including
    two shots in the victim’s back. The trial judge found that under
    these facts Hicks was not justified in using lethal force and
    therefore was not entitled to immunity. The judge noted that
    whereas the defense had the burden of proof at the immunity
    hearing, there were issues of fact and credibility yet to be resolved
    at trial.
    At his March 21, 2017, plea hearing and as part of the plea
    colloquy, Hicks’s counsel stated that Hicks would “reserve his right
    to appeal [the lower tribunal’s] ruling on the stand your ground
    hearing.” Counsel described this reservation as “jurisdictional in
    nature and would be something that an appellate court could
    review either way.” The State had no objection: “I have no objection
    [to] that, obviously, statutory immunity would be something that
    would be dispositive.” See Fla. R. App. P. 9.140(b)(2)(A)
    (authorizing appeals of dispositive orders in conjunction with a
    plea agreement).
    The State requested, and defense counsel agreed, that if Hicks
    were not successful on the appeal, he could not later withdraw his
    plea. Counsel discussed with the trial judge the mechanism of
    appellate review, with the judge stating that review would be
    “appealed from final judgment.” The prosecutor agreed with the
    procedure of appealing the stand-your-ground order post-plea, and
    the lower tribunal approved that. As part of the plea colloquy, the
    trial judge stated that judgment would be entered, “And so you
    would then still preserve the right to appeal that immunity
    decision I made against you on the stand your ground.” The judge
    indicated counsel would be appointed for the appeal, “And then you
    will still be able to pursue the appeal on the stand your ground. . . .
    [I]f that’s successful, then that would vacate the judgment. If it’s
    not successful, then the judgment and the plea agreement will
    stand.”
    Concluding the hearing, the judge again advised Hicks that
    he could appeal the plea, judgment, and sentence, and that “You
    also have preserved the right to appeal the Court’s prior ruling
    denying your motion for immunity under the so-called stand your
    ground law. . . . So you have 30 days in which to file a written
    appeal. . . .” The judge discussed appointing counsel for the appeal.
    12
    The same day as the plea hearing, the lower court accepted and
    signed the written plea of guilty and negotiated sentence, which
    specified as among the negotiated terms, “[Defendant] reserves
    right to appeal courts [sic] ruling on Stand Your Ground Hearing.”
    Hicks filed a pro-se notice of appeal from jail on April 18, 2017,
    stating that he appealed the court’s order rendered March 21, “a
    final order of Judgment and Sentence because he [Hicks]
    specifically reserved his Right [sic] to appeal the denial of his
    motion to dismiss based upon stand your ground immunity.” The
    day before Hicks’s pro-se notice of appeal was docketed, trial
    counsel filed, and the court clerk docketed, a notice of appeal from
    the “Order Denying Defendant’s Motion for Declaration of
    Immunity and Dismissal.” Counsel filed a Statement of Judicial
    Acts to be Reviewed, identifying “The trial court’s Order, dated
    August 4, 2016, in which the trial court denied Defendant’s Motion
    for Declaration of Immunity and Dismissal.” That order denied
    Hicks’s Motion for Declaration of Immunity and Dismissal, “for the
    reasons stated in open court on August 4, 2016.” As noted above,
    the reasons the trial court stated for denying the motion to dismiss
    included the burden of proof.
    (2) Post-Disposition Developments. The 2017 amendment
    shifting the burden of proof to the State in self-defense immunity
    hearings took effect June 9, 2017—a year and a half after Hicks
    filed his motion seeking immunity, ten months after the trial
    court’s ruling denying immunity, three and a half months after the
    parties’ stipulated plea, and two and a half months after the notice
    of appeal was filed. Hicks argued in his brief that the 2017
    amendment was procedural and thus retroactive, which is now
    this Court’s position on that issue under Commander and its
    progeny. Hicks specifically argued in his initial brief that the new
    standard “will significantly impact the results of any hearing held
    under the new standard.” He argued that his hearing was not the
    kind envisioned under the new statute and the legislative intent
    behind it, that the change in the burden of proof could alter the
    outcome of the hearing, and that “[i]t cannot be considered certain
    or even likely that the state could overcome” the new burden. He
    argued in his reply brief that he and others similarly situated have
    not received the “‘full and fair hearing’” contemplated by the new
    13
    law. At oral argument, the court noted that “the substantive right
    here is the immunity,” with which Hicks’s counsel agreed.
    The record clearly reflects that Hicks entered his plea in
    reliance on the parties’ stipulation and the trial court’s ruling that
    the immunity issue was dispositive. Hicks argued on appeal that
    the substantive right of immunity was available to him through
    the procedural vehicle created by the 2017 amendment.
    Nevertheless, the majority applies a narrow view of Hicks’s
    argument, as if he had raised only a purely academic issue about
    whether the amendment was retroactive or not with no tie to his
    own substantive rights. This narrow view is refuted by Hicks’s own
    argument and by common sense. The new development in the law
    gave Hicks a new procedural argument—entitlement to a new
    immunity hearing under a more favorable burden and quantum of
    proof—and as a result he has a very real opportunity to secure his
    substantive right of immunity. See, e.g., Mayers v. State, 
    43 Fla. L
    .
    Weekly D2800, 
    2018 WL 6598716
    , at *1 (Fla. 1st DCA Dec. 17,
    2018 (remanding for discharge where the trial court rejected an
    immunity claim under prior statute, but alternatively held that
    “had the burden of proof been on the State, the State failed to meet
    its burden to show that Petitioner was not entitled to immunity”).
    The majority, however, would block Hicks’s procedural path on the
    grounds that even a very real opportunity to secure the
    substantive right of immunity is insufficiently definitive to have
    been dispositive under rule 9.140(b)(2)(a).
    I believe the majority’s reasoning is contrary to Florida
    Supreme Court precedent on dispositivity, as I will explain below.
    The majority also suggests (albeit in a footnote) that it would reach
    the same result on the particularity requirement of              rule
    9.140(b)(2)(a). I therefore address both dispositivity and
    particularity, while holding to my position that the majority’s
    novel analysis should not have been raised and resolved sua sponte
    absent supplemental briefing, at a minimum.
    C. Dispositivity.
    As part of their plea agreement, Hicks and the State
    stipulated that the denial of immunity was dispositive for purposes
    of appeal, and the trial court expressly agreed. The stipulation
    brings this case within the scope of Churchill v. State, 
    219 So. 3d 14
    14 (Fla. 2017). In Churchill, the supreme court held that if the
    State stipulates that an issue reserved for appeal is dispositive,
    then a reviewing court is bound by the stipulation: “For the reasons
    expressed above, we hold that, in appeals from conditional no
    contest pleas, stipulations of dispositiveness are binding on the
    appellate court.” 
    Id. at 18.
    In so holding, the supreme court
    expressly rejected the district court’s reasoning that dispositivity
    was lacking where a scenario existed under which a new trial could
    follow on remand. 
    Id. at 15.
    Churchill, while not involving a SYG
    immunity hearing, clearly instructs that the appellate court is not
    authorized to go behind a stipulation of dispositivity and speculate
    about what might transpire on remand. In other words,
    dispositivity is to be determined in accordance with the stipulation
    as and when made in the trial-court proceedings, not from the
    perspective of the reviewing court and its potential disposition of
    the appeal. See also Clayton v. State, 
    252 So. 3d 827
    (Fla. 1st DCA
    2017) (entertaining appeal from order denying motion to suppress
    where state agreed it was dispositive); England v. State, 
    46 So. 3d 127
    , 129 (Fla. 2d DCA 2010) (holding that order denying motion to
    suppress “is not dispositive unless the parties so stipulate”)
    (quoting Wilson v. State, 
    885 So. 2d 959
    , 960 (Fla. 5th DCA 2004));
    Jackson v. State, 
    382 So. 2d 749
    (Fla. 1st DCA 1980) (holding
    appellate court will treat appeal as involving a dispositive issue if
    the State stipulates to it).
    In the SYG context, viewed from the perspective of the
    appellate court’s options, several outcomes are theoretically
    possible, although not all are likely given the nature of the issues.
    The appellate court could find the defendant entitled to immunity
    as a matter of law, in which case the process ends. In the typical
    prohibition proceeding brought after a SYG ruling and before trial
    (not involving a plea), if the reviewing court finds the defendant
    not entitled to immunity, a trial may occur on remand (although
    as a practical matter it would seem the likelihood of a plea
    increases under this scenario).
    The analytical difficulty increases when the appellate issue is
    the proper burden of proof. If this issue is raised via prohibition
    between immunity hearing and trial, with no plea, and the
    appellate court rules that the wrong burden was used below, the
    trial court may simply review the evidence already adduced at the
    15
    earlier SYG hearing, applying the new burden and quantum of
    proof. See 
    Tynes, 262 So. 3d at 852
    (noting trial court could apply
    the new analysis to the evidence already adduced at hearing). In
    other instances there can be a new SYG hearing—although again,
    the possibility of a plea. If on new review or a new SYG hearing
    the defendant prevails, the State can go no further. And, if the
    defendant loses in the new hearing, the State can take it to trial
    (with a higher likelihood of a plea). But when the issue is raised
    immediately post-plea—or even on plenary appeal post-trial, see,
    e.g., Boston and Aviles-Manfredy—the defendant is entitled to a
    new weighing of evidence or a new SYG hearing under the correct
    burden of proof.
    Importantly, that limited pre-trial immunity hearing in and
    of itself is not prosecution nor a trial on the merits, and therefore
    cannot defeat dispositivity. This demonstrates that the majority
    erroneously describes my dissent as presuming the State will
    pursue its case—meaning prosecution, trial, judgment, and
    sentence. To the contrary, in this context, the correct disposition
    would first honor the bilateral, court-approved stipulation of
    dispositivity, then remand solely for a new weighing of evidence or
    a new immunity hearing applying the new burden of proof. If the
    State loses and Hicks secures immunity, the case is over, and that
    is dispositivity within Churchill.
    As a practical matter in cases not involving the facts
    presented here, the outcome of a new immunity hearing will either
    end further prosecution below and thus be actually dispositive, or
    allow a trial (or make a plea ever more likely). That academic
    possibility of a trial following an order denying immunity after
    remand leads the majority to find no dispositivity. Factually, that
    reasoning does not apply here, with a plea and a stipulation of
    dispositivity. Analytically, that reasoning applies the wrong
    perspective—that of the appellate court’s potential remedies on
    the immunity question, and resulting sequelae. To the contrary,
    Churchill instructs us to test dispositivity from the perspective of
    the stipulating parties. What theoretically could happen on
    remand in a vacuum is not controlling under Churchill. See also
    Foster v. State, 
    232 So. 3d 512
    , 514–15 (Fla. 2d DCA 2017) (holding
    an issue is dispositive if the State cannot go to trial after losing the
    16
    motion). If the parties agreed it is dispositive, it is, for purposes of
    invoking our review. Here, they did, and it is.
    In addition, Churchill indicates that the State is bound by its
    stipulation of dispositivity, and is thus precluded from continuing
    to prosecute on remand: “When the State enters into a plea
    agreement on the condition that the defendant will not face further
    prosecution if he or she prevails on appeal, that agreement is
    binding and cannot be defeated simply because it would be legally
    possible to continue to trial regardless of the outcome in the
    appellate 
    court.” 219 So. 3d at 18
    . The trial court here advised
    Hicks that he could not withdraw his plea if he did not win this
    appeal, and that the judgment would be vacated if he did win this
    appeal. The discussion did not extend to whether the State’s
    stipulation, sufficient to confer jurisdiction under rule
    9.140(b)(2)(A), would become an actual bar to further prosecution
    if Hicks lost a new SYG hearing on remand. It appears it would be;
    that is, that the best-case scenario for Hicks is exoneration and his
    worst-case scenario is his plea. There is no indication the State
    would proceed to trial, and to the contrary, the State reminded
    Hicks that he could not withdraw his plea if he loses this appeal,
    and then the State stipulated to dispositivity of the immunity
    issue—all indicating no ability or intention of proceeding to trial.
    Nor is there any indication that Hicks would have entered the plea
    and stipulation if he had thought he could be subjected to a full
    trial. He will hold the State to its stipulation. In the event of a
    dispute, it would be for the lower tribunal in the first instance to
    resolve issues about whether the stipulation actually foreclosed
    further prosecution and whether Hicks’s plea was fully-informed
    and voluntary in this and other respects. For present purposes,
    Churchill and its progeny direct that we accept the parties’
    stipulation as to dispositivity; the record strongly indicates that
    both parties believe there will be no trial regardless; and what
    could theoretically happen on remand is not controlling.
    The majority cites two cases limiting dispositivity to
    situations where there could not be a trial on remand: Williams v.
    State, 
    134 So. 3d 975
    , 976 (Fla. 1st DCA 2012), and Morgan v.
    State, 
    486 So. 2d 1356
    , 1357 (Fla. 1st DCA 1986). Williams
    involved a competency determination, which the State did not
    stipulate was dispositive and the trial court did not find was
    17
    dispositive. Morgan involved the exclusion of evidence in a driving-
    while-intoxicated case, and the parties agreed that the State could
    proceed to trial if the appellate court reversed the exclusion. Both
    cases pre-date Churchill. Neither case involved self-defense
    immunity; neither involved a bilateral, court-approved stipulation
    of dispositivity like we have here; and both would appear to conflict
    with 
    Foster, 232 So. 3d at 514
    –15. Because of the unique nature of
    immunity itself as only a potential bar to prosecution and trial, it
    will always be necessary to hold some sort of proceeding to
    determine whether immunity applies, and thus the majority’s
    analysis would always make it impossible for litigants to establish
    actual dispositivity in the literal and immediate sense. The
    majority’s analysis is thus an unwarranted procedural restriction
    of the substantive right of immunity.
    In adopting this new precedent that has the legal effect of
    precluding appeals following pleas in SYG cases, the majority
    misplaces its reliance on the broad jurisprudential goal of avoiding
    piecemeal appeals. As discussed above, Churchill itself, which the
    majority cites for this proposition, would allow immediate review
    following a plea that expressly states the issue is dispositive. By
    refusing to follow Churchill and accept a court-approved
    stipulation of dispositivity, the majority would actually generate
    more piecemeal proceedings by forcing litigants to move to
    withdraw their pleas and proceed with ineffective assistance of
    counsel claims, which then generate even more appeals.
    Further, immunity from suit is an appropriate subject for
    interlocutory appeals, as evidenced by the existing appellate rule
    allowing such appeals. Fla. R. App. P. 9.130(a)(3)(C)(v), (vii), (x),
    (xi) (workers compensation immunity, immunity in civil rights
    actions under federal law, immunity from being named as a
    defendant in a suit pursuant to section 768.28(9), Florida Statutes,
    and sovereign immunity). The absence of a specific rule allowing
    appeals from orders denying SYG immunity—which is an
    immunity from prosecution and trial, and not merely immunity
    from punishment or damages—most likely reflects only the
    recency of evolutions in SYG law. The Appellate Rules Committee
    should address this gap. See generally Florida Highway Patrol v.
    Jackson, 
    238 So. 3d 430
    , 431-33 (Fla. 1st DCA 2018) (reviewing
    evolution of rules allowing interlocutory appeal of non-final orders
    18
    denying immunity). Immediate review in a case involving
    immunity from prosecution is within the same analytical grouping
    as those immunities for which immediate appeal is already
    authorized, and we in addition to other courts have accepted such
    appeals in multiple cases already. We should do the same here.
    D. Particularity.
    Although not expressly basing its disposition on the
    particularity issue, the majority heavily discusses the issue in a
    footnote. Their point is that because Hicks did not object to bearing
    the burden of proof at his SYG hearing, and did not specify in his
    plea agreement that he intended to appeal the burden of proof, he
    cannot satisfy the particularity requirement of rule 9.140(b)(2)(A)
    (allowing defendant to “expressly reserve the right to appeal a
    prior dispositive order of the lower tribunal, identifying with
    particularity the point of law being reserved”). I believe the
    majority would be mistaken in that reasoning in two respects: first,
    by requiring litigants to “reserve” a narrow point of law that does
    not exist at the time; and second, by interpreting the rule too
    narrowly to the prejudice of a litigant who did all that the law
    required of him.
    (1) A Precognition Requirement? The timeline shows
    clearly that the legislative change in the SYG burden of proof
    occurred months after Hicks and the State stipulated that he could
    appeal the trial court’s denial of immunity, as well as months after
    the notice of appeal was filed. It was completely impossible for
    Hicks to know at the immunity hearing or plea stage that the
    Legislature would make the change that it later made. It was
    completely impossible for him to meet the burden the majority
    would now place on him. This theory cannot validly be asserted as
    a basis to rule against Hicks on appeal. Cf. Brooks v. State, 
    175 So. 3d
    204, 235 n.9 (Fla. 2015) (rejecting argument that counsel was
    ineffective for failing to raise a due-process defense based on a case
    not issued until two years after trial, and noting that “This Court
    has made clear that counsel cannot be held ineffective for failing
    to anticipate changes in the law”) (citing Taylor v. State, 
    62 So. 3d 1101
    , 1111 (Fla. 2011)); Nelms v. State, 
    596 So. 2d 441
    , 442 (Fla.
    1992) (holding failure to raise change of law occurring more than
    three years after defendant’s sentence was affirmed could not
    19
    constitute ineffective assistance of counsel: “Defense counsel
    cannot be held ineffective for failing to anticipate the change in the
    law.”).
    Although research has not revealed a Florida case precisely
    on point, other jurisdictions have recognized the impossible
    position it would create to require litigants to foresee the future
    enactment of a retroactive statute. Thompson v. State, 
    985 A.2d 32
    , 42 (Md. 2009) (“[T]o say that Thompson cannot receive the
    benefit of the remedial provisions of CP Section 8–201 simply
    because he failed to foresee the enactment of this legislation in
    characterizing his motion, would be contrary to the retroactivity
    analysis we just made.”); Beatty v. State, 
    627 So. 2d 355
    , 358 (Miss.
    1993) (“The application of Section 27–27–12 and the resultant
    amendment to Section 97–33–7 is not a charitable raising of an
    issue not raised but is a necessary application of existing law to
    which the appellant is entitled. We simply cannot apply the law as
    it was and is not anymore.”); cf. Pace v. Jordan, 
    999 S.W.2d 615
    ,
    620 (Tex. Ct. App. 1999) (refusing to apply a statutory amendment
    because the amendment occurred while the case was pending in
    the trial court and no argument regarding the amendment was
    preserved). As a matter of practicality and fairness—due process—
    Hicks cannot be refused relief because he could not foresee the
    future legislative change and state in his plea that he would raise
    that, specifically, on appeal.
    (2) The Benefit of any Doubt. The practical impossibility of
    foreseeing the 2017 legislative change and specifying it as a basis
    of appeal after plea would defeat any attempt to rule that Hicks
    failed to satisfy the particularity requirement of rule
    9.140(b)(2)(A). Case law interprets the particularity requirement
    more broadly and more favorably to litigants. In England, the
    defendant filed a motion to suppress physical evidence, and also
    moved to suppress his confession. He entered a plea, reserving the
    right to appeal at least one motion to suppress, but it was not clear
    which one. The parties appeared to agree that at least one motion
    was dispositive, and the court appeared to agree, but again, it was
    not clear which 
    one. 46 So. 3d at 129
    .
    On appeal, the Second District rejected on the merits the
    appellant’s arguments directed to suppression of the physical
    20
    evidence. With respect to the motion to suppress the confession,
    the appellate court described the circumstances as “murky,” and
    noted that the case exemplified the need for clarity and specificity.
    
    Id. at 129
    & n.2. Nevertheless, the court followed its own precedent
    of giving the appellant the benefit of any doubt: “In these types of
    cases, we have given appellants the benefit of any uncertainty as
    to the appealability of orders denying motions to suppress and we
    have proceeded to discuss the merits of these cases.” 
    Id. at 129
    (citing additional cases); see also 
    Edwards, 257 So. 3d at 587
    (reaching SYG merits issues under broadly-worded reservation of
    right to appeal the stand your ground ruling). The language used
    in Hicks’s reservation of rights and stipulation as to dispositivity
    was typical of that used in other cases, and better than some. It
    was sufficient.
    III. Conclusion.
    The facts presented make an exceptionally strong case for
    dispositivity due to the plea and its incorporated bilateral, court-
    approved stipulation of dispositivity. The immunity question
    uniquely requires a non-prosecutorial evidentiary analysis to give
    life to the substantive right of immunity at stake. As a matter of
    law, an immunity hearing is not itself a trial or prosecution. This
    evidentiary proceeding does not in and of itself defeat dispositivity,
    even if such analysis were permissible on the facts of this case,
    where the parties contemplated an end to prosecution regardless
    of the outcome of this appeal.
    Consistent with Commander, we should reverse Appellant’s
    judgment and sentence, and remand for a new stand-your-ground
    immunity hearing at which the State has the burden of proof under
    section 776.032(4). See 
    Commander, 246 So. 3d at 1303-04
    . We
    should certify conflict with the decisions of other courts finding the
    2017 statutory change prospective. See 
    Love, 247 So. 3d at 609
    ;
    Hight v. State, 
    253 So. 3d 1137
    (Fla. 4th DCA 2018). We should not
    override a stipulated, judge-approved reservation of right to
    appeal an issue designated as dispositive, and then change
    existing SYG law--especially not without first affording the parties
    the courtesy of being heard in supplemental briefing. Therefore, I
    respectfully dissent.
    21
    _____________________________
    Andy Thomas, Public Defender, and Greg Caracci, Assistant
    Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Robert Quentin Humphrey
    and Kaitlin Weiss, Assistant Attorneys General, Tallahassee, for
    Appellee.
    22