Third District Court of Appeal
State of Florida
Opinion filed November 17, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D19-911
Lower Tribunal No. F15-836
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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.
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 pre-
trial 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775 (Fla. 2015), superseded by statute as stated in Sparks v. State,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 June 9, 2017,
and provides as follows:
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).
2
§ 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).
3
In December 2018, Toiran proceeded to a jury trial. After both the
State and defense rested, Toiran moved for a judgment of acquittal arguing
that the evidence failed to rebut his justifiable use of deadly force against the
victim. The trial court denied Toiran’s motions for judgment of acquittal. The
trial court instructed the jury on self-defense. Thereafter, the jury found
Toiran guilty of second-degree murder with a firearm, finding that during the
commission of the crime, he discharged a firearm causing the victim’s death,
thereby rejecting Toiran’s claim of self-defense. Toiran was later sentenced.
Toiran’s appeal followed.
Following Toiran’s conviction, the Florida Supreme Court issued two
relevant decisions. First, In December 2019, the Florida Supreme Court
quashed this court’s decision in Love v. State,
247 So. 3d 609 (Fla. 3d DCA
2018). See Love v. State,
286 So. 3d 177 (Fla. 2019). The Florida Supreme
Court concluded that “[s]ection 776.032(4) is a procedural change in the law
and applies to all Stand Your Ground immunity hearings conducted on or
after the statute’s effective date.” Love, 286 So. 3d at 190. Thus, based on
the Florida Supreme Court’s decision in Love, in denying Toiran’s SYG
motion, the trial court incorrectly applied the 2015 version of section 776.032,
rather than section 776.032(4), Florida Statutes (2017), which places the
burden on the State to prove by clear and convincing evidence that a
4
defendant is not entitled to immunity.
Second, in October 2021, the Florida Supreme Court issued its
decision in Boston v. State, SC20-1164,
2021 WL 4613829 (Fla. Oct. 7,
2021), in which the Florida Supreme Court accepted jurisdiction based on
conflict with the First District Court of Appeal’s decision in Boston v. State,
296 So. 3d 580 (Fla. 1st DCA 2020) (“Boston II”)1, and the Second District
Court of Appeal’s decision in Nelson v. State,
295 So. 3d 307 (Fla. 2d DCA
2020). In Boston, the Florida Supreme noted that it was considering the
following question, which the First District answered in the negative in Boston
II: “[W]hether a defendant convicted by jury verdict after raising a self-
defense claim is entitled to a new immunity hearing if the trial court applied
the incorrect standard at the immunity hearing under section 776.032,
Florida Statutes (2017), known as Florida’s Stand Your Ground law.”
Boston,
2021 WL 4613829, *1. The Florida Supreme Court approved the
First District’s holding in Boston II and disapproved of the Second District’s
decision in Nelson.
In concluding that a defendant is not entitled to a new immunity
hearing, the Florida Supreme Court relied on its decision in Dennis v. State,
51 So. 3d 456 (Fla. 2010). Dennis was charged with aggravated battery with
1
The Florida Supreme Court refers to this decision as Boston II.
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a deadly weapon, a hammer. Dennis filed a motion to dismiss asserting
immunity from criminal prosecution under section 776.032, Florida Statutes
(2006). The trial court denied Dennis an evidentiary hearing, “conclud[ing]
that in enacting section 776.032, the Legislature did not intend to take the
question of immunity away from the jury.” Boston,
2021 WL 4613829, *3
(quoting Dennis,
51 So. 3d at 458). Thereafter, the jury convicted Dennis of
the lesser included offense of felony battery. The Florida Supreme Court
held that the trial court erred by denying Dennis an evidentiary hearing, but
the error was harmless. In concluding that the error was harmless, the
Florida Supreme Court explained that there was “no reasonable possibility
that the trial court’s failure to make a pretrial evidentiary determination
regarding Dennis’s immunity claim contributed to Dennis’s conviction”
because the jury rejected his claim of self-defense and “determined that the
evidence established beyond a reasonable doubt that Dennis committed the
lesser included offense of felony battery.” Boston,
2021 WL 4613829, *3
(quoting Dennis,
51 So. 3d at 464). In Boston, the Florida Supreme stated
that the First District’s decision in Boston II is consistent with the decision in
Dennis, stating as follows:
The First District's decision in Boston II is consistent with
Dennis. Dennis concluded that when a jury determines that the
defendant is guilty beyond a reasonable doubt, notwithstanding
a claim of self-defense, that determination cures the trial court’s
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erroneous failure to hold a pretrial immunity hearing; Boston II
similarly held that the same jury determination cures a trial
court’s erroneous application of an incorrect burden and
standard of proof at an immunity hearing.
....
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 self-
defense 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.
7
Toiran also contends that the trial court erred by denying his motions
for judgment of acquittal. The argument lacks merit. See Williams v. State,
261 So. 3d 1248, 1252-53 (Fla. 2019).
In the instant case, the shooting occurred in the lobby of where both
the victim and Toiran lived. Assuming that the victim was the initial aggressor
when he pushed Toiran against the wall on the day of the shooting, and
Toiran fired two shots because the victim was attempting to get on top of
him, those two shots missed the victim. The State presented evidence that
after those two shots missed the victim, the remaining shots were fired when
Toiran was standing up and the victim was attempting to retreat. The victim
sustained gunshot wounds to the side of his abdomen, the back of his head,
the mid back, the lower back, and two to the upper back. Based on the
evidence presented by the State, the trial court did not err by denying
Toiran’s motions for judgment of acquittal.
Finally, Toiran argues that reversal is required based on an isolated
and extremely brief comment made by the State during its rebuttal closing
argument. We disagree. Assuming that the objected-to comment was
improper, the error was harmless as the State has demonstrated beyond a
reasonable doubt that the alleged error did not affect the verdict. See State
v. DiGuilio,
491 So. 2d 1129, 1135 (Fla. 1986) (stating that the harmless error
8
analysis places the burden of proof on the State, as the beneficiary of the
error, to show “no reasonable possibility that the error contributed to the
conviction”); Rodriguez v. State,
248 So. 3d 1085, 1086 (Fla. 2018)
(reaffirming the harmless error standard set forth in DiGuilio). Accordingly,
we affirm Toiran’s conviction and sentence.
Affirmed.
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