Roy P. Boston v. State of Florida

Supreme Court of Florida
____________

No. SC20-1164
____________

ROY P. BOSTON,
Petitioner,

vs.

STATE OF FLORIDA,
Respondent.

October 7, 2021

CANADY, C.J.

In this case we consider whether 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. We have for

review Boston v. State (Boston II), 296 So. 3d 580, 582 (Fla. 1st DCA

2020), in which the First District answered that question in the

negative and, in doing so, certified conflict with the Second

District’s decision in Nelson v. State, 295 So. 3d 307 (Fla. 2d DCA
2020). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We

approve the First District’s holding in Boston II and disapprove

Nelson.

I. BACKGROUND

Under the Stand Your Ground law, a person is generally

“immune from criminal prosecution and civil action” when that

person justifiably uses or threatens to use force under certain

circumstances. § 776.032(1), Fla. Stat. (2017). The immunity from

prosecution “includes arresting, detaining in custody, and charging

or prosecuting the defendant.” Id. Section 776.032 provides

immunity for “[a] person who uses or threatens to use force as

permitted in s. 776.012, s. 776.013, or s. 776.031.” Id. Relevant to

this case, section 776.012 provides:

(1) A person is justified in using or threatening to
use force, except deadly force, against another when and
to the extent that the person reasonably believes that
such conduct is necessary to defend himself or herself or
another against the other’s imminent use of unlawful
force. A person who uses or threatens to use force in
accordance with this subsection does not have a duty to
retreat before using or threatening to use such force.

(2) A person is justified in using or threatening to
use deadly force if he or she reasonably believes that
using or threatening to use such force is necessary to
prevent imminent death or great bodily harm to himself

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or herself or another or to prevent the imminent
commission of a forcible felony. A person who uses or
threatens to use deadly force in accordance with this
subsection does not have a duty to retreat and has the
right to stand his or her ground if the person using or
threatening to use the deadly force is not engaged in a
criminal activity and is in a place where he or she has a
right to be.

§ 776.012, Fla. Stat. (2017).

The question presented here regards the proper remedy for the

application of an incorrect burden of proof at an immunity hearing.

In 2015, this Court held that “the defendant bears the burden of

proof, by a preponderance of the evidence, to demonstrate

entitlement to Stand Your Ground immunity at the pretrial

evidentiary hearing.” 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). In apparent response to Bretherick, the

Legislature amended section 776.032 in 2017, adding the following

subsection:

(4) 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).

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See Ch. 2017-72, Laws of Fla.; § 776.032(4), Fla. Stat. (2017). The

amendment provided that it would “take effect upon becoming a

law,” which occurred on June 9, 2017. Id. In light of the 2017

amendment, a defendant is no longer required to prove that he or

she acted in self-defense by a preponderance of the evidence at an

immunity hearing; instead, a defendant need only make a prima

facie showing at that point. To defeat the claim of immunity, the

State must prove by clear and convincing evidence that the

defendant did not act in self-defense.

Boston was charged with aggravated battery with a deadly

weapon, arising from a 2016 altercation in which he struck his

former employer with a hammer. Boston filed a motion to dismiss,

arguing that he was entitled to immunity under section 776.032.

The parties agreed that the trial court would hear Boston’s

immunity motion during trial. Before commencing the trial and

immunity hearing on November 8, 2017, the trial court heard

argument regarding whether to apply the 2017 burden-shifting

amendment to section 776.032 retroactively in Boston’s case. The

trial court ruled that the preamendment standard set forth in

Bretherick would apply, and Boston would bear the burden of proof

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and be required to establish his entitlement to immunity by a

preponderance of the evidence. After the immunity hearing was

held during the trial, the trial court rejected Boston’s claim of

immunity. The jury also rejected Boston’s self-defense claim, and

ultimately convicted him of the lesser included offense of

misdemeanor battery.

While Boston’s initial appeal was pending review in this Court

in 2019, we decided Love v. State, 286 So. 3d 177 (Fla. 2019), in

which we held that the 2017 amendment to section 776.032 applied

to immunity hearings taking place on or after the statute’s effective

date of June 9, 2017. Thus, it should have applied to Boston’s

immunity hearing, which was held on November 8, 2017. As a

result, this Court granted the State’s petition for review of Boston v.

State (Boston I), 260 So. 3d 445, 446 (Fla. 1st DCA 2018), quashed,

45 Fla. L. Weekly S134 (Fla. Feb. 28, 2020), quashed the First

District’s decision below, and remanded to the First District for

reconsideration in light of Love and section 776.032(4), Florida

Statutes (2017).

On remand, the First District concluded that because Boston’s

immunity hearing took place after the amendment’s effective date,

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the trial court erred in failing to apply the 2017 amendment in that

hearing. But because Boston was subsequently convicted at trial,

the First District considered “whether a defendant convicted at trial

by proof beyond a reasonable doubt is entitled to a new immunity

hearing if the trial court applies the wrong standard at a hearing

conducted after the effective date of the amendment to the Stand-

Your-Ground statute.” Boston II, 296 So. 3d at 582. The court held

that “under those circumstances, a defendant is not entitled to a

new immunity hearing.” Id. The court reasoned that because “[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,” 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. at 583. And “[b]ecause the State overcame

Boston’s self-defense claim by meeting the heavier trial burden of

proof beyond a reasonable doubt, the trial court’s failure to require

the State to overcome Boston’s immunity claim with clear and

convincing evidence was cured.” Id. at 583-84.

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The First District therefore affirmed Boston’s conviction and

sentence but certified conflict with Nelson, in which the Second

District held, without explanation or elaboration, that a defendant

was entitled to a new immunity hearing after the trial court

erroneously applied the preamendment burden of proof in his

immunity hearing, even though he had subsequently been

convicted by a jury. Nelson, 295 So. 3d 307. We now resolve that

conflict.

II. ANALYSIS

In order to resolve the conflict presented, we look to our earlier

decision in Dennis v. State, 51 So. 3d 456 (Fla. 2010). In Dennis,

“we consider[ed] whether a trial court should conduct a pretrial

evidentiary hearing and resolve issues of fact when ruling on a

motion to dismiss asserting immunity from criminal prosecution

pursuant to section 776.032, Florida Statutes (2006).” 51 So. 3d at

458. Dennis was charged with attempted first-degree murder (later

reduced to aggravated battery) and sought immunity by filing a

motion to dismiss under section 776.032. Id. at 458-59. The trial

court denied Dennis an evidentiary hearing on his motion,

“conclud[ing] that in enacting section 776.032, the Legislature did

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not intend to take the question of immunity away from the jury.”

Id. at 458. The jury ultimately convicted Dennis of the lesser

included offense of felony battery. Id. at 459.

After concluding that the trial court erred in denying Dennis

an evidentiary hearing, we held that the error was harmless

because 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” at

trial, because Dennis presented his claim of self-defense to the jury,

but the jury rejected that claim and “determined that the evidence

established beyond a reasonable doubt that Dennis committed the

lesser included offense of felony battery.” Id. at 464.

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

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.

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The 2017 amendment to section 776.032 states that “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.”

§ 776.032(4), Fla. Stat. (2017). But at a trial, the party seeking to

overcome the immunity—the State—must overcome the defendant’s

claim of self-defense by a higher standard of proof: beyond a

reasonable doubt. When the State proves beyond a reasonable

doubt that the defendant did not act in self-defense, the clear and

convincing requirement is ultimately met and exceeded. And

although any legal error at the pretrial immunity hearing may, as

Boston claims, be “insulated from review once a defendant has

invoked his right to trial,” a defendant who avails him or herself to a

pretrial immunity hearing and who believes legal error was

committed at the pretrial immunity hearing may still seek relief by

filing a petition for a writ of prohibition 1 before invoking his or her

1. A defendant may also challenge the denial of pretrial
immunity by entering a plea of no contest, reserving the right to

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right to a trial. Boston did not have the opportunity to seek review

of the denial of his immunity motion before a verdict was rendered

only because he voluntarily chose to waive his right to a pretrial

immunity hearing by agreeing to have his motion to dismiss heard

during the trial.

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

appeal the denial of the motion. See, e.g., Edwards v. State, 257
So. 3d 586, 587 (Fla. 1st DCA 2018).

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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 his waiver of a

pretrial immunity hearing) 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). 2

III. CONCLUSION

For the reasons explained, we approve the decision of the First

District in Boston II and disapprove the decision of the Second

District in Nelson.

2. Boston raises several other arguments in favor of approving
Nelson that are foreclosed by the fact that he waived his right to a
pretrial immunity hearing and do not warrant further discussion.

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It is so ordered.

POLSTON, LABARGA, LAWSON, MUÑIZ, COURIEL, and
GROSSHANS, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal
Certified Direct Conflict of Decisions

First District - Case No. 1D17-5190

(Leon County)

Jessica J. Yeary, Public Defender, Lori A. Willner, and Kasey Lacey,
Assistant Public Defenders, Second Judicial Circuit, Tallahassee,
Florida,

for Petitioner

Ashley Moody, Attorney General, Amit Agarwal, Solicitor General,
Jeffrey Paul DeSousa, Chief Deputy Solicitor General, and
Christopher J. Baum, Senior Deputy Solicitor General, Tallahassee,
Florida,

for Respondent

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