The Florida Supreme Court recently heard oral arguments regarding whether the legislative change to Florida’s “Stand your Ground” law in June of 2017 should apply retroactively to cases pending when the law was passed.  The case that was argued before the Florida Supreme Court was Love v. State, a Third District court of appeal case in which the Third District ruled that the change in the law should not be applied retroactively to cases that were pending at the time of its passage. The  Love case is in conflict with the Second District court of appeal.  The Second district ruled that the law should be applied retroactively. This conflict is the reason the case is now being argued before the Florida Supreme Court.

Prior to the Love case, the Key West criminal defense attorneys at Robertson & Hunter made the same argument to the third district court of appeal that Love’s attorneys recently argued before the Florida Supreme Court, specifically, that the law should be applied retroactively to cases that were pending when the law was passed.  Legal observers are eagerly awaiting the Florida Supreme Court’s decision in Love, as it will have countless impact on many cases throughout the State. The argument made by the criminal defense attorneys at Robertson & Hunter is below:

Florida Senate Bill 128 was signed into law on June 9th, 2017 with an immediate effective date. Senate Bill 128 has amended subsection four (4) of Florida Statute § 776.032 to read 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 pre-trial 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).

Section 2. This act shall take effect upon becoming law.

Senate Bill 128 makes a procedural change to Florida’s stand your ground statutes. As such, this procedural change should apply to pending cases. This distinction between substantive and procedural modifications to statutes is an important one. “The general rule is that a substantive statute will not operate retrospectively absent clear legislative intent to the contrary, but that a procedural or remedial statute is to operate retrospectively.” State Farm Mut. Auto Ins. Co. v. Laforet, 658 So. 2d 55, 61 (Fla. 1995) citing Arrow Air, Inc. v. Walsh, 645 So. 2d 422 (Fla. 1994); Alamo Rent-A-Car, Inc v. Mancusi, 632 So. 2d 1352 (Fla. 1994); and City of Lakeland v. Catinella, 129 So. 2d 133 (Fla. 1961).

This distinction between a substantive change and a procedural change is discussed in Smiley v. State, 966 So. 2d 330 (Fla. 2007).  The Smiley Court was tasked with making the determination as to whether the change in Florida law removing the duty to retreat should be applied retroactively to a pending criminal case.  The Court noted in the factual context of the case before it, that “the specific right of Smiley to use deadly force in self-defense in his taxi did not exist prior to section 776.013.” Id. at 335.

 The Smiley court first noted that it must first make a determination as to whether or not the change in the statutory law was a “procedural/remedial change or a substantive change in the law.” Id. at 334.  The Court cited to City of Lakeland v. Catninella, 129 So. 2d 133, 136 (Fla. 1961) for the proposition that:

Remedial statutes or statutes relating to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of rights already existing, do not come within the legal conception of a retrospective law, or the general rule against retrospective operation of statutes.

The Court goes on to state:

Moreover, the “presumption in favor of prospective application generally does not apply to remedial legislation; rather, whenever possible such legislation should be applied to pending cases in order to fully effectuate the legislation’s intended purpose.” Id. at 334 citing Arrow Air, Inc. v. Walsh, 645 So. 2d 422, 424.

The trial Court seemed to rely upon Arrow Air, Inc. v. Walsh, 645 So. 2d 422 (Fla. 1994) in denying petitioner his requested evidentiary hearing.  This case dealt with the question as to whether or not the implementation of “The private sector Whistle-Blower’s Act” would have retroactive application.  In this case, flight engineer Walsh filed a wrongful discharge complaint against Arrow Air, Inc.  While Walsh’s action was pending with the Court (and obviously after his firing), the private sector whistle blower’s act came into effect.  Prior to that, Florida did not have a cause of action for retaliatory discharge.  Id. at 423-424.  The court concluded that the private sector Whistle-Blower’s act created a new burden upon employers to protect employee’s who ‘blow the whistle’ from retaliatory personnel action pursuant to § 448.102, Florida Statutes (1993).  The trial Court’s apparent belief that the ‘burden’ mentioned by the Arrow Air, Inc. Court was referencing the burden of proof (rather than the burden upon the employer to prohibit retaliatory personnel action) was an incorrect interpretation of the case law.

Statutory modifications to the burden of proof are procedural modifications.  See Ziccardi v. State, 570 So. 2d 1319 (Fla. 2d DCA 1990).

In Walker & LeBerge, Inc. v. Halligan, 344 So. 2d 239 (Fla. 1977), the supreme court found that the burden of proof is a procedural matter and held that although a ‘statute modified plaintiff’s burden of proof requirement, …it did not abrogate a substantive statutory rightId. at 243. (emphasis added)

It should be noted that the Smiley Court only finds itself at the second level of analysis in which it applies the Metropolitan Dade County v. Chase Federal Housing Corp., 737 So. 2d 494 (Fla. 1999) “test” because it has come to the determination that the removal of the duty to retreat prior to using deadly force is a substantive change in the law.  On this point the Smiley Court states:

This legislation clearly constitutes a substantive change in the law, rather than a procedural/remedial change in the law, because it alters the circumstances in which it is considered a criminal act to use deadly force without first needing to retreat.  See State v. Garcia, 229 So. 2d 236, 238 (Fla. 1969) (“As related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes the punishment therefor…”) Id. at 335

The First District Court of Appeal describes this procedural versus substantive dichotomy further in the context of a criminal case in Grice v. State, 967 So. 2d 957 (Fla. 1st DCA 2007).  After the alleged offense Grice was accused of committing had occurred and while his case was pending, the Florida Legislature enacted Florida Statute § 918.19 which enabled the State to open the closing argument and rebut the defendant’s closing arguments. Grice argued that “because the offenses of which he was convicted were committed before the effective date of the statute, section 918.19 could not be applied to him.” Id. at 959.

The State’s argument in Grice, which was adopted by the Court as the correct argument, was:

“The State responds that because section 918.19 affected only a procedural (rather than a substantive) change in the law, there is no impediment, constitutional or otherwise, to its application to him.” Id. at 960.

The Grice Court went on to address the issue as follows:

“Article X, section 9, of the Florida Constitution expressly provides that “repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed.” However, Florida Courts have repeatedly held that this prohibition on retroactive application of statutes applies only to statutes that effect a substantive change in the law; it has no application to changes in the law that are merely procedural or remedial.”  Id. at 960.

The Grice Court determined that because the change was procedural in nature, its retroactive application to the defendant’s case was appropriate, noting the language cited in Smiley that states, “Moreover, ‘whenever possible, [procedural or remedial] legislation should be applied to pending cases in order to fully effectuate the legislation’s intended purpose.” Id. at 960.

Of the legislature’s intent in passing Florida Senate Bill 128, there is little doubt. On April 5th, 2017, the Honorable Gayle Harrell, representative of Florida House district 83 noted: “I was here in 2005 when we passed the first bill that this is really trying to correct.  This bill is trying to correct what the Court has overruled the legislative process and really has legislated from the bench on this bill.  I was here and I was very much a part of the conversation on the intent of that bill.  There is no doubt that the intent of that bill was to make sure that the State had the burden of proof, and that when you used force to protect yourself, that the burden of proof was on the State to say that you committed a crime.” House Session 4/5/17 CS/SB 128: Third Reading; Timestamp 3:11:05.

On February 9th, 2017, the Honorable Rob Bradley, the Florida State Senator representing Florida District 5 stated: “…it’s important to note that at issue today is not the concept of Stand Your Ground.  At issue today is not the concept of whether or not we have an immunity hearing or not.  These are part of our criminal justice system: a part of our laws as we sit here today….Those things are settled. That is a part of the fabric of our criminal justice system.  What we’re talking about today in layman’s terms is what happens at one of these immunity hearings.  Those hearings exist today, Senator Montford, and who has the burden of proof at those hearings… What does it mean to have immunity from trial if the hearing doesn’t put the burden of proof where it should be: the government?  So we’re talking about giving full effect to what we did when we passed the law and said that you have immunity.” Senate Rules Committee 2/9/17 CS/SB 128 Rules Committee; Time Stamp 1:14:02.

Senator Bradley’s comments do an excellent job of pointing out that the substantive right associated with “stand your ground” hearings was previously established and that the modification to the statute merely modifies the procedural burden of proof aspect of the hearings.