FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D18-2926

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CLARK DANIEL MAYERS,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

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Petition for Writ of Prohibition – Original Jurisdiction.

December 17, 2018

BILBREY, J.

 Petitioner Clark Daniel Mayers seeks a writ of prohibition 

directing the trial court to dismiss the second degree murder and 

attempted first degree murder charges currently pending against 

him based on the Stand Your Ground immunity provided in 

section 776.032, Florida Statutes. The charges against Petitioner 

arose out of an incident which occurred on March 5, 2015. After 

conducting an immunity hearing on February 23, 2018, the trial 

court entered a detailed written order which determined that the 

evidence as to whether Petitioner was acting in self-defense was 

inconclusive. The trial court held that a defendant had the 

burden to prove immunity because an amendment to section 

776.032 applied only prospectively and as such denied immunity

to Petitioner. The trial court also held in the alternative that had

the burden of proof been on the State, the State failed to meet its 
2

burden to show that Petitioner was not entitled to immunity. 

Because we have recently approved the retroactive application of 

chapter 2017-72, §§ 1-2, Laws of Florida, which took effect June 

9, 2017, and which shifted the burden of proof from the defendant 

to the prosecution, we grant the petition.1 See § 776.032(4), Fla. 

Stat.

 In Commander v. State, 246 So. 3d 1303 (Fla. 1st DCA 2018), 

we were faced with the question of the retroactive application of 

the amendment to section 776.032(4). There, the State conceded 

error on appeal because the prosecutor had agreed “the state had 

the burden to prove that [defendant] was not immune from 

prosecution under the Stand Your Ground law.” Commander, 

246 So. 3d at 1303. We accepted the State’s concession of error in 

Commander and cited with approval Martin v. State, 43 Fla. L. 

Weekly D1016, 2018 WL 2074171 (Fla. 2d DCA May 4, 2018). In 

Martin, the Second District determined that the statutory 

amendment to section 776.032(4) was procedural and therefore 

should be applied retroactively to shift the burden from the 

defendant to the prosecution.2 

 1 “In the context of the denial of a motion to dismiss on Stand 

Your Ground immunity, prohibition has typically been the 

preferred remedy because the issue involves a determination of 

whether the circuit court has continuing jurisdiction over the 

defendant.” Rosario v. State, 165 So. 3d 852, 854 (Fla. 1st DCA 

2015).

2 Because the burden of proof in a criminal prosecution stems 

from “the presumption of innocence which attends the defendant 

throughout the trial,” Florida’s civil case precedent relied on in 

Martin in holding the burden of proof to be procedural and not 

substantive would not apply to the State’s burden of proof at trial 

for the offenses charged. See Reynolds v. State, 332 So. 2d 27, 29 

(Fla. 1st DCA 1976); see also Estelle v. Williams, 425 U.S. 501, 

503 (1976) (holding that the “presumption of innocence, although 

not articulated in the Constitution, is a basic component of a fair 

trial”); Cordell v. State, 157 Fla. 295, 296, 25 So. 2d 885, 886 

(1946) (holding that the presumption of innocence is fundamental 

law and well-established in Florida). 
3

 In Edwards v. State, 43 Fla. L. Weekly D2345, D2345 n.1, 

2018 WL 4997631, *1 n.1 (Fla. 1st DCA Oct. 16, 2018), we read 

Commander to mean that “in this district we have applied the 

amendment retroactively.” The retroactive application of the 

statute was also approved by the Fifth District in Fuller v. State, 

43 Fla. L. Weekly D2237, 2018 WL 4659067 (Fla. 5th DCA Sept. 

28, 2018). 

 The Third and Fourth Districts have set forth cogent

arguments that the retroactive application of the amendment to 

the burden of proof would violate the savings clause in article X, 

section 9 of the Florida Constitution. See Love v. State, 247 So. 

3d 609 (Fla. 3d DCA 2018), rev. granted, SC 18-747, 2018 WL 

3147946 (Fla. Jun. 26, 2018); Hight v. State, 43 Fla. L. Weekly 

D1800, 2018 WL 3769191 (Fla. 4th DCA Aug. 8, 2018). The 

courts in Love and Hight held therefore that the amendment to 

section 776.032(4) operated only prospectively. The court in 

Hight recognized that we held to the contrary in Commander and 

certified conflict. Ultimately, the Florida Supreme Court will 

have to determine which view is correct, and we therefore certify 

conflict with Love and Hight. 

 Based on Commander, Martin, and Fuller, we grant the 

petition, quash the order denying Petitioner’s motion to dismiss, 

and remand for the trial court to discharge Petitioner pursuant to 

the trial court’s alternative finding that the State did not meet its 

burden if the amendment to the burden of proof in section 

776.032(4) was applied retroactively.

 

 PETITION GRANTED; CONFLICT CERTIFIED.

ROBERTS and MAKAR, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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4

Michael Ufferman, Tallahassee, for Petitioner.

Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, 

Assistant Attorney General, Tallahassee, for Respondent.