FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-5190

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ROY P. BOSTON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Leon County.

Angela C. Dempsey, Judge.

November 30, 2018

ROWE, J.

Roy P. Boston appeals his judgment and sentence for battery, 

asserting that the trial court erred by denying his motion for

mistrial and by applying the wrong standard in ruling on his 

motion for Stand Your Ground immunity. We affirm the denial of 

the motion for mistrial without further comment. However, based 

on this Court’s recent decisions in Commander v. State, 246 So. 3d 

1303 (Fla. 1st DCA 2018), and Edwards v. State, 2018 WL 4997631 

(Fla. 1st DCA Oct. 16, 2018), we are constrained to reverse the trial 

court’s ruling on the Stand Your Ground motion.

Before trial, the parties argued whether the 2017 amendment 

to the Stand Your Ground law, section 776.032(4), Florida 

Statutes, would apply to Boston’s offense. Before the amendment, 
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a defendant, at a pretrial evidentiary hearing, had to prove by a 

preponderance of evidence that he was entitled to Stand Your 

Ground immunity. Bretherick v. State, 170 So. 3d 766, 775 (Fla. 

2015). The amendment to the statute changed both the burden

and quantum of proof required for establishing entitlement to 

immunity. Now, when a defendant raises a prima facie claim of 

Stand Your Ground immunity, the State must prove by clear and 

convincing evidence that the defendant is not entitled to 

immunity. § 776.032(4), Fla. Stat. (2017). Boston argued that this 

amendment to the Stand Your Ground law was procedural in 

nature and therefore applied retroactively to his 2016 offense.

The trial court rejected Boston’s argument and concluded that 

the 2017 amendment was a substantive change in the law, and 

therefore, the amendment applied prospectively from the date of 

the enactment, over one year after Boston’s offense. The court 

determined that Boston had the burden to show entitlement to 

immunity by a preponderance of evidence. After the defense 

rested, the trial court found that Boston failed to meet this burden 

and denied Boston’s motion for immunity. The jury convicted 

Boston of battery, and this appeal followed.

Based on this Court’s recent decisions in Commander and 

Edwards, where this Court determined that the 2017 amendment 

to the Stand Your Ground law applies retroactively, Boston is 

entitled to a new immunity hearing. Commander, 246 So. 3d at 

1304; Edwards, 2018 WL 4997631 at *1, n.1. See also Martin v. 

State, 43 Fla. L. Weekly D1016, 2018 WL 2074171 (Fla. 2d DCA 

May 4, 2018) (holding that the 2017 amendment to section 776.032 

is procedural in nature and therefore can be applied retroactively). 

But see Love v. State, 247 So. 3d 609 (Fla. 3d DCA 2018) (applying 

the 2017 amendment prospectively after concluding it was a 

substantive change in the law and certifying conflict with Martin), 

review granted, SC18-747, 2018 WL 3147946 (Fla. Jun. 26, 2018); 

Hight v. State, 43 Fla. L. Weekly D1800, 2018 WL 3769191 (Fla. 

4th DCA Aug. 8, 2018) (agreeing with the Third District in Love).

Accordingly, based on this Court’s binding decisions in 

Commander and Edwards, we reverse and remand for the trial 

court to reconsider Boston’s motion for immunity under the Stand 

Your Ground statute and the State’s burden of proof under section 
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776.032(4), Florida Statutes (2017). Ordinarily, the merits of a 

motion to dismiss filed under Florida’s Stand Your Ground law 

should be determined before trial at a pretrial evidentiary hearing 

because the central purpose of such a motion is for the defendant

to seek immunity from trial. See Dennis v. State, 51 So. 3d 456, 

461-64 (Fla. 2010) (holding that where a criminal defendant files a 

motion to dismiss pursuant to section 776.032, the trial court 

should conduct a pretrial evidentiary hearing and decide the 

factual question of the applicability of statutory immunity); see 

also Satyanand v. State, 147 So. 3d 662, 663 (Fla. 5th DCA 2014); 

Martinez v. State, 44 So. 3d 1219, 1220 (Fla. 1st DCA 2010);

Peterson v. State, 983 So. 2d 27, 29 (Fla. 1st DCA 2008). 

Proceeding to trial before determining whether the defendant is 

entitled to immunity frustrates the purpose of the immunity 

provided for in the statute. However, here the parties stipulated 

that the trial court need not conduct the immunity hearing before 

trial, but could instead consider Boston’s motion for immunity at 

trial. For this reason, on remand the trial court may rely on the 

evidence adduced at trial to determine whether the State met its 

burden under section 776.032(4), Florida Statutes (2017), or, in the 

alternative, hold a new evidentiary hearing.

AFFIRMED in part; REVERSED in part and REMANDED.

WOLF and LEWIS, 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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Andy Thomas, Public Defender, and Kasey Lacey, Assistant Public 

Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General; Amit Agarwal, Solicitor 

General; Edward M. Wenger, Chief Deputy Solicitor General; and 

Christopher J. Baum, Deputy Solicitor General, Tallahassee, for 

Appellee.