A New Leg to Stand on: A Look At the Retroactive Nature of Florida Laws As Applied to Florida’s “Stand Your Ground” Law
Paige
Appelbaum
In the 2017
session of the Florida Legislature, 1,900 filed bills came before the State
Legislators.[i] Of those proposed, 234 bills were passed by
both the House and the Senate,[ii] one of them being Senate Bill 128.[iii] On Friday, June 9, 2017, the Florida Senate passed
Senate Bill 128, which amends portions of Florida’s “Stand Your Ground” law.[iv] The change made by Senate Bill 128 have been
attributed to making a claim of self-defense easier for a defendant because the
burden will no longer be on them to prove they deserve immunity.[v]
In 2005, Florida’s
self-defense law dramatically changed.[vi] The Legislature passed Florida Statute §§
776.012, 776.013, 776.031, and 776.032[vii],
which together have become known as the Florida “Stand Your Ground” law.[viii] This law has been the topic of debate since
its inception primarily because it allows for the use deadly force.[ix] The new law eliminated a person’s duty to
retreat if he or she reasonably believes that such force in necessary to
prevent imminent death or great bodily harm.[x]
The 2005 statute was vague
regarding what was required of the defendant when seeking the immunity afforded
by the statute and state prosecutors role.[xi] The statute did not specify the procedures
for evaluating a claim of immunity.[xii] More specifically, once the motion for
immunity was made, it was not clear who had the burden of proof.[xiii] The Florida Supreme Court responded to the uncertainty
by decided in Bretherich v. State[xiv] that the defendant had the burden of proving, by a preponderance of the
evidence, that he or she was entitled to statutory immunity.[xv]
The Legislature responded
to the ruling in Bretherich with
Senate Bill 128.[xvi] With the signing on the bill, the burden has
shifted to the State to overcome the immunity set forth in the “Stand Your
Ground” law by clear and convincing evidence at a pretrial evidentiary hearing.[xvii] Senate Bill 128 does not specifically address
how this change in law will apply to cases which are currently pending in the
Florida court system.[xviii]
The courts have set forth the general rule that a
change in the substantive law will not generally operate retrospectively,
whereas a procedural change is to apply retrospectively.[xix] Senate Bill 128 is a procedural change to the
existing “Stand Your Ground” law because it does not effect a substantive
right.[xx] Procedural changes to a law do not invoke the
Federal restriction against ex post facto laws.[xxi] Procedural changes can often be applied
retroactively without triggering the ex post facto concerns that would
typically be associated with the application of a substantive change.[xxii]
The presumption that
statutes should be applied prospectively, rather than retrospectively,
typically will not apply to remedial or procedural statutes.[xxiii] That being said, a change in the law that is
merely procedural does not have the same prohibitions as a law that effects the
substantive rights of a defendant.[xxiv] Therefore, the changes made to the burden of
proof in Senate Bill 128 should be considered a procedural change in the law.[xxv] That being said, based on the first factor of
the Metropolitan Dade County Test, Senate Bill 128 should be applied
retroactively to pending cases.[xxvi]
After looking to the
existing Florida case law regarding retroactivity of statute, it becomes evident
that Senate Bill 128 should be applied to pending cases retroactively to
consistently follow the view of the court.[xxvii] As a procedural law with no clearly expressed
legislative intent, the presumption against retroactive application does not
attach to Senate Bill 128.[xxviii] As a result, changes made to the burden of
proof in Senate Bill 128 should be considered a procedural change in the law.[xxix] Therefore, it is constitutional to apply
Senate Bill 128 retroactively during “Stand Your Ground” pretrial evidentiary
hearings based on the Metropolitan Dade
County Test.[xxx]
[i]. Michael
Auslen et al., Florida Legislature
2017: What passed and what failed, Tampa Bay Times (May 11, 2017),
http://www.tampabay.com/news/politics/stateroundup/florida-legislature-2017-what-passed-and-what-failed/2323573.
[ii]. Id.
[iii]. Comm.
Sub. S.B. 128, 2017 Leg., 119th Sess. (Fla. 2017).
[iv]. Id.;
Brendan Farrington, Florida Could Flip
Burden of Proving ‘Stand Your Ground’, Daytona
Beach News-Journal, (March 2, 2017, 12:40 PM),
http://www.news-journalonline.com/news/20170302/florida-could-flip-burden-of-proving-stand-your-ground.
[v]. Auslen
et al., supra note 1.
[vi]. Michelle
Jaffe, Up in Arms over Florida’s New
“Stand Your Ground” Law, 30 Nova L.
Rev. 155, 156 (2005).
[vii]. Fla. Stat. § 776.012 (2016); Fla. Stat. § 776.013 (2016); Fla. Stat. § 776.031 (2016); Fla. Stat. § 776.032 (2016).
[viii]. Jaffe,
supra note 6, at 175.
[ix]. Jessica
Slatten, Recent Developments: Florida Legislation—The Controversy over
Florida’s New “Stand Your Ground” Law—Fla. Stat. § 776.013 (2005), 33 Fla. St. U. L. Rev. 351, 353 (2005).
[x]. Zachary
L. Weaver, Florida’s “Stand Your Ground”
Law: The Actual Effect and the Need for
Clarification, 63 U. Miami L. Rev.
395, 395 (2008).
[xi]. Brown, Prof’l
Staff of the Comm. on Rules, Bill Analysis and Fiscal Impact Statement
3, Comm. Sub. S.B. 128, 2017 Leg., 119th Sess. (Fla. 2017),
https://www.flsenate.gov/Session/Bill/2017/128/Analyses/2017s00128.rc.PDF.
[xii]. Id.
[xiii]. Id. at 4; Bretherich v. State, 170 So. 3d 766, 768 (Fla. 2015).
[xiv]. 170
So. 3d 766 (Fla. 2015).
[xv]. Id. at 768.
[xvi]. Brown, supra note 11, at 1.
[xvii]. Comm.
Sub. S.B. 128, 2017 Leg., 119th Sess. (Fla. 2017).
[xviii]. Id.
[xix]. State Farm Mut. Auto. Ins. v. Laforet,
658 So. 2d 55, 61 (Fla. 1995).
[xx]. Id.
[xxi]. Landgraf v. USI Film Products, 511 U.S.
244, 261 (1994).
[xxii]. Id. at 275.
[xxiii]. Arrow Air, Inc. v. Walsh, 645 So. 2d
422, 424 (Fla. 1994); Smiley v. State,
966 So. 2d 330, 334 (Fla. 2007). “The
presumption against retroactive application of a law that affects substantive
rights, liabilities, or duties is a well established rule of statutory
construction.” Arrow Air, Inc., 645 So. 2d at 425.
[xxiv]. Grice v. State, 967 So. 2d 957, 960
(Fla. 1st Dist. Ct. App. 2007).
[xxv]. Cf. Shaps v. Provident Life & Accident Ins., 826 So. 2d 250, 254
(Fla. 2002) (Although no Florida case has squarely addressed this issue,
generally in Florida the burden of proof is a procedural issue.”).
[xxvi]. Cf. Metro. Dade Cty. v. Chase Fed. Hous.
Corp, 737 So. 2d 494, 503 (Fla. 1999).
[xxvii]. State v. Rutherford, No. F16-12827, slip
op. at 1 (Fla. 11th Cir. Ct. App. July 3, 2017).
[xxviii]. Arrow Air, Inc. v. Walsh, 645 So. 2d
422, 424 (Fla. 1994).
[xxix]. Shaps, 826 So. 2d at 254.
[xxx]. David v. State, No. 3D17-1346, slip op.
(Fla. 3d Dist. Ct. App. June 16, 2017); Cf.
Metro. Dade Cty. v. Chase Fed. Hous. Corp,
737 So. 2d 494, 499 (Fla. 1999).
