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 
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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 StandYour-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 prohibition1 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