# Third District Court of Appeal

State of Florida

Opinion filed April 14, 2021

.

________________

No. 3D19

- 0570

Lower Tribunal No. 16

- 182

- A

- K

________________

Anthony Joseph Valdes

, Appellant,

vs.

The State of Florida

, Appellee.

An appeal from the Circuit Court for Monroe County, Mark H. Jones

, Judge.

Carlos J. Martinez

, Public Defender

, and Manuel Alvarez

, Assistant

Public Defender

, for appellant.

Ashley Moody, Attorney General, and Ivy R. Ginsberg

, Assistant

Attorney General, for appellee.

Before EMAS, C.J., and SCALES and LOBREE, JJ.

LOBREE, J.

ON MOTION FOR REHEARING2 On December 18, 2019, we affirmed the judgment of conviction and

sentence of Anthony Valdes (“Valdes”) for aggravated battery with a firearm,

a lesser included offense of the charge of attempted second

- degree murder

with a firearm. Prior to his trial, Valdes moved to dismiss the information

based on section 776.032, Florida Statutes (2017), Florida's “Stan d Your

Ground” law

. In affirming Valdes’ judgment, we cited our decision in Love v.

State

, 247 So. 3d 609 (Fla. 3d DCA 2018) ( “ Love I ”), which the supreme

court quashed the following day in Love v. State

, 286 So. 3d 177 (Fla. 2019)

( “ Love II

U ”).

We now wit hdraw our December 18, 2019 decision and substitute this

opinion in its stead. Specifically, we write to address Valdes ’ contention he

is entitled to a new Stand Your Ground hearing because the trial court failed

to apply the correct burden when consideri ng his self

- defense immunity

claim. This issue also requires us to determine whether this error was

rendered harmless or cured by Valdes ’ subsequent presentation of the self

defense claim to the jury at trial, which the s tate overcame by meeting the

trial burden of proof beyond a reasonable doubt. For the reasons articulated

below, we hold that Valdes is not entitled to a new Stand Your Gro und

hearing under the facts of this case, and certify conflict with Nelson v. State

,

295 So. 3d 307 (Fla. 2d DCA 2020).3 Facts and Procedural Background

The underlying case arose from a physical altercation in October 2015

between Valdes and his friend

, Ray Anthony Alvarez

, Jr. (“Alvarez”)

. During

the altercation, Valdes shot Alvarez twice (first in the back and then in the

thigh ), leaving him paralyzed after the first shot. Valdes claimed self

defense. At the time, the burden was on the defend ant to show entitlement

to self

- defense immunity at a pretrial immunity hearing by a preponderance

of the evidence. See Maddox v. State

, 288 So. 3d 1223, 1224 (Fla. 5th DCA

2019) (citing Bretherick v. State

, 170 So. 3d 766, 779 (Fla. 2015)). Effective

Ju ne 9, 2017, the legislature amended the Stand Your Ground statute by

placing the burden on the s tate to rebut the defendant’s prima facie claim of

self

- defense immunity by clear and convincing evidence. See § 776.032(4),

Fla. Stat. (2017).

In April 2018, Valdes moved to dismiss the information on the ground

he was immune from criminal prosecution pur suant to the amended statute.

The trial court conducted the evidentiary hearing in June and July 2018. At

the outset of the hearing, the court acknowledged that the issue of

retroactivity of the amendment to section 776.032(4) was then under review

by th e Florida Supreme Court. Bound by this court’s decision in Love I

,

however, the trial court found the amended statute inapplicable to Valdes’4 claim, and stated it would consider Valdes’ entitlement to immunity based on

the pre

- amendment standard. The cou rt then heard testimony from Valdes,

his girlfriend and mother of their three children, Alvarez

, Valdes ’ neighbor

,

and responding law enforcement officers.

Valdes testified that in the evening of October 14, 2015, Alvarez visited

him at his house, where he lived with his girlfriend and their two baby

daughters. They had about $500 in cash at home, which went missing

shortly after Alvarez’s arrival. After Al varez denied taking the money, Valdes,

his girlfriend, and Alvarez got into a verbal altercation. Valdes then went to

his bedroom to retrieve his .32 caliber handgun

, which he put in his pocket.

Alvarez left the house shortly thereafter, and Valdes follo wed him outside.

While arguing about the money in the yard, Alvarez struck Valdes on the side

of his head. As Alvarez was attempting to leave, Valdes pulled the back of

his shirt. Alvarez turned around, grabbed Valdes by his head, and put his

arm around his neck. Valdes tried to defend himself, but could not do so

properly, as his left hand was injured as a result of an accident (severing his

thumb) he suffered earlier that day. Not being able to “break free,” Valdes

reached into his pocket, took out h is gun, and discharged the gun from

behind his back. Although he was not aiming at Alvarez

, the bullet hit him,

and Alvarez immediately fell to the ground. While on the ground, Alvarez5 told Valdes he could not feel his legs. However, as Alvarez started crawling

across the grass and shouting at Valdes, Valdes shot Alvarez in the back of

his thigh “to neutralize th [ e] threat,” fearing that Alvarez would get up and

attack him again. Valdes then located the stolen money in Alvarez ’ s right

shoe. Valdes reenacted the fight and the shooting at the hearing.

Valdes ’ account was partially corroborated by his girlfriend. She heard

the argument between Va ldes and Alvarez in the yard. After she observed

Alvarez th ro w the first punch, she returned to the house to call the police.

While inside, she heard a gunshot. When she came back outside, she saw

Alvarez “pushing himself off the ground” and making thre ats toward Valdes.

As Alvarez was trying to get up, Valdes shot him in the back of his leg.

Alvarez testified differently. He admitted he stole some cash from

Valdes and his girlfriend, which he hid in his shoe, but claimed he returned

the money while st ill at their house, after Valdes pointed the gun at him.

Alvarez then left the house, and, as he was walking to his bicycle, which he

had left in the yard, Valdes shot him in the back, paralyzing him from the

waist down. At the time, Valdes was about ten to twelve feet behind him.

Alvarez said that he immediately lost feeling in his legs and told Valdes, “You

. . . paralyzed me.” He pleaded with Valdes to call 911, but instead Valdes

yelled at his girlfriend that he shot Alvarez and asked her to bring him a knife.6 While Alvarez remained lying on the ground, Valdes walked around him for

about a minute, and then shot him in the leg. He then picked up the bicycle

and th r ew it on t he top of him.

Valdes’ neighbor was walking her dog when she heard an argument

about money coming from Valdes’ yard. During the argument, she heard

someone say, “[d]on’t touch my hand,” and “[t]he hand is already messed

up.” Later, when she finished walk ing the dog and was sitting in her patio,

she heard a gunshot. When she stood up to see what happened, she saw

Valdes shoot Alvarez the second time.

L aw enforcement officers arrived at the scene to find Alvarez lying on

his stomach in the grass. He had a large blood spot on the back of his shirt,

was not moving, and there was a bicycle on top of him. At the scene, the

officers recovered Valdes ’ gun, two bullet casings, and a knife, which was

found stabbed into the ground next to Alvarez

. The officers ob served dried

blood on Valdes’ head and several cuts on his arm. After Valdes waived his

Miranda 1 rights, the officers conducted several interviews with him about the

events of that evening.

The trial court found that Valdes was not immune from prosecution,

concluding that he “did not possess a reasonable belief that his use of deadly

1 Miranda v. Arizona

, 384 U.S. 436 (1966).7 force against [ A lvarez ] was necessary to prevent imminent death or great

bodily harm to himself, [his girlfriend,] or their children.” While the court

reiterated that it was applying the pre

- amendment burden of proof, t he court

expressed the view the case was not even a close one. The court did not

find Valdes’ testimony and his version of what transpired during the

altercation to be credible or supported by the evidence. The court found that

the shooting during the physical altercation was not justified, as Valdes’ pri or

injury did not incapacitate him to the extent th at he had no alternative but to

shoot Alvarez

. As to Valdes’ second shot, the court specifically observed:

You know, you shot a man in the back and, when

he ’ s on the ground, you shoot him again, and

someh ow the presentation is that

. . . you had a

reasonable belief that the use of such force was

necessary to prevent imminent death or great bodily

harm. The Court finds that ’ s just not supported by

the evidence.

Following the denial of the motion to dismiss, the case proceeded to a

jury trial. Valdes did not testify in his defense, but his self

- defense claim was

presented to the jury th r ough his recorded interviews, as well as a video

depicting the reenactment of the shooting, which were played to th e jury.

Valdes ’ recollection of the events during the interviews was essentially the

same as his Stand Your Ground testimony. Valdes’ girlfriend also gave a

statement to the law enforcement officers at the scene, which was recorded,8 and played to the jur y. She testified and her account of the events leading

up to the shooting was, for the most part, consistent with her Stand Your

Ground testimony

, but add ed that she told an officer that Alvarez attacked

Valdes with a knife, cutting him, then when Alvarez turned around

, Valdes

shot him. The trial testimony of Alvarez

, the neighbor

, and the law

enforcement officers was consistent with their testimony presented at the

Stand Your Ground hearing.

After the s tate rested its case

- in

- chief, Valdes moved for a judgment of

acquittal on the basis the s tate failed to present sufficient evidence to

disprove the self

- defense claim as a matter of law, but the trial court denied

his motion. Prior to deliberations, the trial court instructed the jury on self

defense, as well as the s tate ’s burden to prove Valdes’ guilt beyond a

reasonable doubt. Ultimately, the jury found Valdes guilty of the lesser

included offense of aggravated battery with a firearm, and the trial co urt

sentenced Valdes to twenty

- five years’ imprisonment. Valdes appealed the

judgment of conviction and sentence. On December 19, 2019, a day after

we affirmed the judgment, the Florida Supreme Court decided Love II

, in

which it determined that “[s] ectio n 776.032(4) is a procedural change in the

law and applies to all immunity hearings conducted on or after the statute ’ s

effective date.” 286 So. 3d at 190.9 Analysis

Valdes argues he is entitled to a new Stand Your Ground hearing

conducted under the revised burden of proof shifted by amended statute

,

because the trial court improperly applied the pre

- 2017 burden of proof in his

pretrial hearing, and the s tate failed to overcome by clear and convincing

evidence his claim of self

- defense immunity. The s tate contends that any

error in the court ’ s failure to apply the correct standard during the hearing

was harmless beyond a reasonable doubt, as Valdes presented his self

defense claim to the jury at trial, and he was found guilty beyond a

reasonable doub t of the lesser included offense of aggravated battery.

Pursuant to the Stand Your Ground statute, “a person is justified in

using deadly force and does not have a duty to retreat if that person

[reasonably] believes such force is necessary to prevent [imm inent] death or

great bodily harm” to the person or to another person. Hart v. State

, 308 So.

3d 655, 657 (Fla. 4th DCA 2020) (citing § 776.032(1), Fla. Stat. (2017)); see

also § 776.012(2), Fla. Stat. (2017). Under the statute, a criminal defendant

may raise his or her claim of self

- defense immunity from criminal prosecution

at a pretrial immunity hearing. See § 776.032(4). “[T]he entire purpose of

this immunity [hearing] is to provide a mechanism by which a person who is

asserting lawful self

- defense may have the defense heard early in the10 process to avoid the time and expense of a trial.” Mency v. State

, 292 So.

3d 1, 2 (Fla. 1st DCA 2019) (Robert s

, J., concurring); cf. Den nis v. State

, 51

So. 3d 456, 462 (Fla. 2010) ( “ While Florida law has long recognized that a

defendant may argue as an affirmative defense at trial that his or her use of

force was legally justified, section 776.032 contemplates that a defendant

who establi shes entitlement to the statutory immunity will not be subjected

to trial .” )

.

After losing a self

- defense immunity hearing, a defendant may

“vindicate his [or her] right to self

- defense” in two ways. Mency

, 292 So. 3d

at 3

- 4 (Robert s

, J., concurring). S hould the defendant wish to avoid trial, he

or she may challenge the denial of a motion to dismiss by fling a petition for

writ of prohibition in appropriate appellate court, which is the preferred

method to challenge the denial. Id. If the defendant doe s not petition for writ

of prohibition, or his or her petition for writ of prohibition is denied, the

defendant may still proceed to trial and present his or her self

- defense

immunity claim to the jury. Id. at 4.

With regard to present ation of the claim of self

- defense at a pretrial

immunity hearing, in 2017 the burden of proof was shifted from the defendant

to the s tate as follows:

In a criminal prosecution, once a prima facie claim of

self

- defense immunity from criminal prosecution has11 been r aised 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).

§ 776.032(4). Following the amendment, the q uestion of who bears the

burden of proof may be of most significance in extremely close cases, or in

cases where courts have only limited evidence to consider. See Maddox

,

288 So. 3d at 1224. As to a claim of self

- defense presented at trial, “the

standar d has always been that the s tate is required to prove beyond a

reasonable doubt that the defendant, after a showing of a prima facie claim

of self

- defense, did not act in lawful self

- defense,” Mency

, 292 So. 3d at 4

(Robert s

, J., concurring), which is a hi gher standard of proof than the

standard of overcoming a defendant's self

- defense immunity claim by clear

and convincing evidence at a pretrial hearing, Boston v. State

, 296 So. 3d

580, 583 (Fla. 1st DCA 2020 )

, review granted

, No. SC 20

- 1164 (Fla. Oct. 7,

2020).

Here, the trial court’s finding that this was “not even a close case” in

the pretrial Stand Your Ground hearing impl ies that Valdes’ self

- defense

claim failed under the post

- amendment as well as the prior burden of proof

.

As such

, there would be “n o useful purpose” in remanding the case for

another immunity hearing

. See Maddox

, 288 So. 3d at 1224 (finding12 defendant was not entitled to new Stand Your Ground hearing because his

claim failed under either burden of proof”); see also Hart

, 308 So. 3d at 658

(finding, in part, that new Stand Your Ground hearing was not required, as

“[t]he trial court's findings in the first SYG hearing demonstrate[d] the

defendant 's self

- defense claim fail[ed] under either burden of proof”). More

importantly, in this case, Valdes was also afforded the opportunity to present

his self

- defense claim to the jury at trial, but the jury rejected it, finding him

guilty of the lesser incl uded offense of aggravated battery. As the Florida

Supreme Court recognized in Dennis

, 51 So. 3d at 463, in some cases, a

jury verdict may render an error in denying a motion to dismiss based on the

Stand Your Ground law harmless

. This is such a case.

In Dennis

, following a domestic violence incident, the s tate charged the

defendant with attempted first

- degree murder. Id. at 458. He moved to

dismiss the information pursuant to section 776.032, Florida Statutes (2006)

,

asserting that “his actions were a justified use of force.” Id. The s tate argued

that the existence of material facts required the denial of the motion. Id. The

trial court agreed, concluding it lacked authority to conduct an evidentiary

hearing, as “ in enacting section 776.032, the Legislature did not intend to

take the question of immunity away from the jury.” Id. Prior to trial, the s tate

reduced the charge to aggravated battery. Id. At trial, the defendant testified13 in his own defense, and call ed a witness, who testified that the incident at

issue was instigated by the victim hitting the defendant with a beer bottle. Id.

at 464. The s tate presented evidence contradicting the self

- defense claim.

Id. The defendant’s motion for judgment of acqu ittal was denied, and the

jury impliedly rejected the claim of self

- defense, finding the defendant guilty

of felony battery. Id.

The Florida Supreme Court held the defendant was not entitled to relief

despite the court ’ s failure to make a pretrial evident iary determination

regarding the immunity claim, as based on the record before it, the error was

harmless beyond a reasonable doubt. Id. The c ourt reasoned that the

defendant received a fair trial, his ability to present the claim of self

- defense

to the jury was not limited in any way by the pretrial ruling

, his self

- defense

claim was based on the same evidence that would have been presented at

the Stand Your Ground hearing, and the jury rejected the self

- defense claim

by determining that the s tate established beyond a reasonable doubt that the

defendant committed the lesser included offense of felony battery. Id. ; see

also Rice v. State

, 90 So. 3d 929

, 931 (Fla. 1st DCA 2012) (even if res

judicata doctrine did not bar defendant ’ s argument that court erred in denying

his claim of immunity under Stand Your Ground law, any error in denial of14 motion to dismiss was harmless once defendant was convicted by jury at

trial).

Similarly, after Love II

, two of our sister courts have determined that “a

trial court's error in applying the correct burden at the immunity hearing can

be cured if the s tate establishes the defendant ’ s guilt at trial by proof beyond

a reasonable doubt. ” Boston

, 296 So. 3d at 583; see also Scheel v. State

,

305 So. 3d 831 (Fla. 1st DCA 2020) ; Little v. State

, 302 So. 3d 396 (Fla. 4th

DCA 2020); Hart

, 308 So. 3d at 65 8

. By contrast, following Love II

, the

Second District determined that a defendant was entitled to a new immunity

hearing conducted under the amend ed statute because his immunity hearing

was held on the same day as the amendment became effective, even though

the defendant was subsequently found guilty by a jury

. Nelson

, 295 So. 3d

at 307.

In Boston

, the defendant claimed self

- defense immunity pursuant to

the amended Stand Your Ground statute. 296 So. 3d at 583. After the trial

court determined it was the defendant’s burden to prove the immunity, the

parties stipulated the court could rule on the m otion during the trial. Id. At

trial, the defendant presented his self

- defense claim to the jury. Id. The court

ruled on the motion after the defense rested, finding the defendant failed to

prove his entitlement to immunity. Id. The jury was properly instructed on15 the defendant’s self

- defense, as well as the s tate’s burden to prove the guilt

beyond a reasonable doubt, and found the defendant guilty of battery

. Id.

The First District found the defendant was not entitled to a new immunity

hearing unde r these facts. Id. The court reasoned that “[b]ecause the State

overcame [the defendant’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 [the defendan t’s] immunity claim with clear and

convincing evidence was cured,” and there was no need to remand the case

for another hearing. Id. at 583

- 84; see also Scheel

, 305 So. 3d at 831

(same).

The Fourth District dealt with the same issue in Little

, 302 So. 3d at

407. There, the s tate charged the defendant with aggravated assault with a

deadly weapon and battery. Id. at 398. When denying the defendant’s

motion to dismiss the charges at the Sta nd Your Ground hearing, the trial

court incorrectly applied the pre

- 2017 amendment burden of proof. Id. The

case then proceeded to a jury trial, at which the defendant advanced his self

defense theory to the jury but was convicted of both charges. Id. Th e Fourth

District agreed with Boston court that, “since ‘ [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

-16 defense immunity cl aim by clear and convincing evidence, ’ the error with

respect to the burden of proof at the SYG hearing can be ‘ cured if the State

establishes the defendant’s guilt at trial by proof beyond a reasonable

doubt.’” Id. at 407 (quoting Boston

, 296 So. 3d at 5 82). Applying this

rationale to the case before it, the Fourth District found that “ [p]er the jury

verdict in th[e] case,

. . . the burden of proof error at the SYG hearing was

cured and there [wa]s no need to remand this case for another hearing.” Id. ;

see also Hart

, 308 So. 3d at 658 (affirming “[b]ecause the State overcame

the defendant's self

- defense claim by establishing the defendant's guilt

beyond a reasonable doubt and the evidence from the first SYG hearing

would also satisfy the new heightened burden of proof”).

We likewise agree with the First District that, because at trial, the s tate

is required to overcome the defendant ’s claim of self

- defense by meeting the

burden of proof beyond a reasonable doubt, which is a higher burden than

the clear and convincing evidence standard the s tate was required to satisfy

at the pretrial hearing, the trial court’s error with regard to the burden of proof

at the Stand Your Ground hearing may be cured by a subsequent guilty jury

verdict at trial. See Boston

, 296 So. 3d at 582.

Our review of the record in the instant case reveals that, in light of the

jury verdict in this case, any error concerning the burden of proof in the trial17 court’s ruling on Valdes’ entitlement to immunity at the Stand Your Ground

hearing was harmless beyond a reasonable doubt. First, the defense theory

and the evidence adduced in its support at trial were the same as the theory

and evidence presented at the Stand Your Ground hearing. Although Valdes

did not testify at trial

, unlike during the prior hearing

, he was nonetheless

able to fully litigate his self

- defense claim presented to the jury through his

recorded interviews, as well as the reenactment video

. N othing in the record

suggests that Valdes’ ability to mount a defense or present evidence in

support of his self

- defense claim at tri al was in any way frustrated or limited

by the trial court’s ruling at the Stand Your Ground hearing

.

Further, during trial, Valdes moved for judgment of acquittal based on

his claim that the s tate did not adequately rebut his defense

, but the trial

court denied his motion. Finally, prior to deliberations, the jury was correctly

instructed on Valdes’ claim of self

- defense and the s tate’s burden to prove

Valdes’ guilt beyond a reasonable doubt

. By its verdict, the jury clearly found

there was no reasonable doubt on the question of whether Valdes was

justified in the use of deadly force, as it found Valdes guilty of aggravated

battery with a firearm. Although this was a lesser included offense of the

charged offense of attempted second

- degree murder, it was for precisely the

same conduct the trial court considered at the Stand Your Ground hearing,18 with the only difference being the relevant intent. Based on th is record

, we

conclude there is no reasonable possibility that the trial court’s ruling at the

Stan d Your Ground hearing contributed to Valdes’ conviction

, and there is

no need to remand the instant case for another Stand Your Ground hearing

.

Accordingly, we affirm the judgment of conviction and sentence. Because of

our holding, a s in Boston

, Little

, and Hart

, we certify conflict with Nelson

, 295

So. 3d at 307. See Boston

, 296 So. 3d at 584; Little

, 302 So. 3d at 407; Hart

,

308 So. 3d at 658

.

Affirmed; conflict certified.