FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D18-1993

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CORRY MENCY,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Suwannee County.

David W. Fina, Judge.

June 12, 2019

PER CURIAM.

In this appeal, the defendant raises two issues. First, he 

argues that he is entitled to a new trial based on the trial court’s 

failure to sustain his objections to questions asked by the State 

during its cross-examination. Second, he argues that he is entitled 

to a new self-defense immunity hearing under the Stand-YourGround statutes because the trial court failed to apply the proper 

burden of proof. With regards to the first issue, we find no 

reversible error. With regards to the second issue, the appellant 

makes two arguments, one of which was not properly preserved.

At trial, the appellant essentially argued that the trial court 

needed to determine whether section 776.032(4) applied 
2

retroactively. On appeal, the appellant argues that the trial court 

failed to make that ruling. However, the trial court stated that 

regardless of who had the burden, the appellant was not entitled 

to immunity. This ruling implies that the trial court made a ruling 

under both standards. Because the trial court applied the correct 

standard, the trial court did not err. The appellant also argues

that the trial court failed to assess the evidence presented by the 

defense when it ruled on his immunity claim. However, that issue

was not properly preserved for appeal because the appellant failed 

to raise that issue to the trial court. See Rodriguez v. State, 609 

So. 2d 493, 499 (Fla. 1992) (“It is well settled that the specific legal 

ground upon which a claim is based must be raised at trial and a 

claim different than that raised below will not be heard on 

appeal.”) Accordingly, we affirm the appellant’s judgment and 

sentence.

AFFIRMED.

B.L.THOMAS, C.J., and LEWIS, J., concur; ROBERTS, J., concurs with 

written opinion.

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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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ROBERTS, J., concurring.

I concur with the majority’s opinion, but write separately to 

address the issue of the defendant’s argument that he is entitled 

to a new self-defense immunity hearing. This Court has adopted 

the position that a defendant is entitled to a new self-defense 

immunity hearing when the trial court incorrectly applies section 

776.032, Florida Statutes. Aviles-Manfredy v. State, 44 Fla. L. 

Weekly D187 (Fla. 1st DCA January 7, 2019) (adopting the 

procedure that the trial court must hold a new Stand-Your-Ground 

hearing as stated in Martin v. State, 43 Fla. L. Weekly D1016 (Fla. 

2d DCA May 4, 2018)). However, the use of that procedure conflicts 

with the purpose of the immunity hearing, which is to provide a 
3

defendant with a procedural mechanism that allows him to 

present his self-defense claim early rather than force him to wait 

until trial.

Self-Defense

Florida has long acknowledged the fundamental right of its 

citizens to use force to defend themselves or others. Art. I, § 8(a), 

Fla. Const. The essential elements of self-defense have largely 

remained the same; to wit, a person may use deadly force when it 

is reasonably necessary to prevent imminent death or great bodily 

harm to the person or to another person. § 776.012, Fla. Stat. Selfdefense was and is an affirmative defense in which the one 

asserting self-defense is required to establish a prima facie case of 

the elements of the self-defense claim. The burden then rests on 

the State to establish that the claim is not justified “to the 

exclusion of every reasonable doubt,” which is consistent with the 

State’s burden in every criminal case. See § 90.302, Fla. Stat.; 

Grady v. State, 176 So. 431, 431 (Fla. 1937) (the burden of 

establishing a defendant’s guilt rests with the State). However, 

prior to 2005, the claim of self-defense could only be presented as 

an affirmative defense at trial.

The Stand-Your-Ground Act

In 2005, the Legislature strengthened the right to self-defense 

when it passed Chapter 2005-27, Laws of Florida. That bill 

changed the application of the law of self-defense in three major 

ways. First, it eliminated the duty to retreat when attacked 

outside the home before using lawful deadly force. Ch. 2005-27, §§ 

2-3, Laws of Fla. Second, the bill created a presumption that a 

person had “reasonable fear of imminent . . . death or great bodily 

harm” if the person was attacked in his or her home or conveyance. 

Ch. 2005-27, § 1, Laws of Fla. Third, the bill provided immunity 

from “arrest, detaining in custody, charging or prosecuting” a 

person validly exercising his or her right to self-defense. Ch. 2005-

27, § 4, Laws of Fla. 

Immunity from prosecution, the key issue in this case, was 

created by adding a new section to chapter 776, Florida Statutes, 

which reads as follows:
4

776.032 Immunity from Criminal prosecution and civil 

action for justifiable use of force. - -

(1) A person who uses force as permitted in s. 776.012, s. 

776.013, or s.776.031 is justified in using such force and 

is immune from criminal prosecution and civil action for 

the use of such force[.]

Sections 776.012, 776.013, and 776.031 are the general selfdefense statutes that may be asserted at trial and would have only 

been allowed to be asserted at trial without the immunity provided 

by section 776.032. Most of the case law refers to this immunity 

as “Stand-Your-Ground immunity,” but this is a misnomer because 

the immunity applies to all self-defense cases, not just ones in 

which standing one’s ground is an element. That is why a better 

label is “self-defense immunity.” In fact, the statutes refer to it as 

“self-defense immunity.” See § 776.032(4), Fla. Stat. In the 

whereas clauses for Chapter 2005-27, Laws of Florida, the 

Legislature found “that it is proper for law abiding people to 

protect themselves, their families, and others from intruders and 

attackers without fear of prosecution or civil action for acting in 

defense of themselves and others . . . .” The important thing to 

remember for our analysis is that the entire purpose of this 

immunity is to provide a mechanism by which a person who is 

asserting lawful self-defense may have the defense heard early in 

the process to avoid the time and expense of a trial. 

Until 2017, section 776.032 did not specify how this immunity 

from arrest, detention, charging, or prosecution was to be 

effectuated. In Dennis v. State, 51 So. 3d 456 (Fla. 2010), the 

supreme court adopted a procedure from Peterson v. State, 983 So. 

2d 27 (Fla. 1st DCA 2008), that required the trial court to hold an 

evidentiary hearing when self-defense immunity was alleged to 

determine whether that person used “force as permitted is s. 

776.012, s. 776.013 or s. 776.031.” Dennis quoted from the section 

of Peterson in which the First District said that the burden of proof 

in the self-defense immunity hearing was on the defendant by a 

preponderance of the evidence, but never adopted this standard. 

Dennis, 51 So. 3d at 459-60. 

Bretherick v. State
5

Subsequently in Bretherick v. State, 170 So. 3d 766, 779 (Fla. 

2015), the supreme court held that at the self-defense immunity 

hearing, the defendant was required to prove he or she was 

entitled to the immunity by a preponderance of the evidence. In a 

dissent joined by Justice Polston, Justice Canady argued that the 

burden should be on the State to rebut the prima facie showing of 

self-defense beyond a reasonable doubt. Id. at 779-80 (Canady, J., 

dissenting). He accused the majority of not recognizing that,

The factual question raised by the assertion of Stand 

Your Ground immunity in a pretrial evidentiary hearing 

is the same as the factual question raised by a Stand Your 

Ground Defense presented at trial: whether the evidence 

establishes beyond a reasonable doubt that the 

defendant’s conduct was not justified under the governing 

statutory standard. 

Id. at 779. 

Justice Canady stated that the “State does not dispute that a 

defendant presenting a Stand Your Ground defense can only be 

convicted if the State proves beyond a reasonable doubt that the 

defense does not apply.” Id. He further reasoned, 

There is no reason to believe that the Legislature 

intended for a defendant to be denied immunity and 

subjected to a trial when that defendant would be entitled 

to acquittal at trial on the basis of a Stand Your Ground 

defense.

Id. at 780.

Chapter 2017-72, Laws of Florida 

Subsequent to Bretherick, the Legislature added another 

subsection to section 776.032:

(4) In a criminal prosecution, once a prima facie claim of 

self-defense immunity from criminal prosecution has 

been raised by the defendant in a pretrial immunity 

hearing, the burden of proof by clear and convincing 

evidence is on the party seeking to overcome the 
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immunity from criminal prosecution provided in 

subsection (1).

Ch. 2017-72, Laws of Fla. According to Senator Rob Bradley, the 

sponsor of Senate Bill 128, which became 2017-72, “[t]his bill 

corrects the error of the Bretherick decision.” Fla. Sen. Comm. on 

Rules, recording of proceedings (Feb. 9, 2017) (Tallahassee)

(Statement of Sen. Rob Bradley) 

(https//thefloridachannel.org/videos/2917-senate-rulescommittee/). 

Since section 776.032(4) was enacted, the district courts have 

been split on whether subsection four applies to crimes committed 

prior to its adoption. See Commander v. State, 246 So. 3d 1303, 

1304 (Fla. 1st DCA 2018) (Mem.) (finding the statute procedural 

and that it applies retroactively); Martin v. State, 43 Fla. L. 

Weekly D1016 (Fla. 2d DCA May 4, 2018), review pending, No. 

SC18-789 (same); Fuller v. State, 257 So. 3d 521, 536-38 (Fla. 5th 

DCA 2018) (same); Love v. State, 247 So. 3d 609, 611-12 (Fla. 3d 

DCA 2018), review granted, No. SC18-747 (finding the statute 

substantive and does not apply retroactively); Hight v. State, 253 

So. 3d 1137, 1140 (Fla. 4th DCA 2018), review pending, No. SC18-

1653 (same). 

Presentation of Self-Defense Claims

There are two ways for a criminal defendant to vindicate his 

right to self-defense after he loses his self-defense immunity 

hearing. First, if the defendant wants to avoid proceeding to trial, 

he may file a petition for writ of prohibition with the appropriate 

district court of appeal. Second, the defendant may go to trial and 

raise his or her self-defense claim.

With regard to a writ of prohibition, the district courts of 

appeal and the Florida Supreme Court have held that a petition 

for writ of prohibition is the appropriate method to freeze the 

proceedings in place so a review of the self-defense immunity 

ruling may be performed. See Tsavaris v. Scruggs, 360 So. 2d 745, 

747 (Fla. 1977) (appropriate procedure to challenge a trial court’s 

authority to continue prosecution is through a petition for writ of 

prohibition); Rosario v. State, 165 So. 3d 852, 854-55 (Fla. 1st DCA 

2015) (Because a writ of prohibition stops the trial court from 
7

continuing to prosecute a defendant who should be immune from 

prosecution, it is the preferred method to challenge a denial of 

motion to dismiss that has occurred after or without an evidentiary 

hearing.); Little v. State, 111 So. 3d 214, 216 n.1 (Fla. 2d DCA 2013) 

(petition for writ of prohibition is the appropriate mechanism to 

challenge the denial of a motion to dismiss based on a self-defense 

immunity statute); Joseph v. State, 103 So. 3d 227, 229 (Fla. 4th 

DCA 2012) (same). A defendant does not lose his right to present 

his self-defense immunity claim to the jury by filing a petition for 

writ of prohibition, nor does he lose his right to present the issue 

to the jury after an unsuccessful petition for writ of prohibition. 

State v. Chavers, 230 So. 3d 35, 39 (Fla. 4th DCA 2017).

With regard to presenting the claim of self-defense at trial, the 

standard has always been that the State 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 selfdefense. At trial, the finder of fact has always applied the correct 

standard whether our state courts were operating under 

Bretherick or the subsequently enacted section 776.032(4). This 

presentation of the self-defense claim at trial moots and subsumes 

any previous error that occurred at the immunity hearing. 

This Case

In this case, the defendant’s self-defense immunity hearing 

was contemporaneous with his trial, meaning that while there was 

no separate immunity hearing, the defendant was allowed to move 

for immunity to be imposed based on the evidence adduced at trial. 

At the close of the State’s case, and again at the close of evidence, 

the defendant moved to dismiss the charges against him based on 

his self-defense immunity claim. Each time the defendant moved 

to dismiss the charges, he argued that the change in the statute 

was procedural and applied retroactively. The State argued that 

the change in the statute was substantive and did not apply 

retroactively. The State also argued that regardless of who had 

the burden of proof, the defendant was not entitled to a dismissal 

based on the evidence. Since the trial court did not have a district 

court of appeal decision to follow, each time it ruled on the 

defendant’s motion, it stated that regardless of which party bore 
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the burden, it thought that the defendant’s self-defense claim was 

a question to be resolved by the jury. 

After the evidence was closed and the trial court ruled on all 

of the defendant’s motions, it properly instructed the jury with 

regards to the defendant’s self-defense claim using the standard 

jury instructions. The trial court properly instructed the jury on 

what constituted justifiable homicide and justifiable use of deadly 

force. It instructed the jury that the State had the burden to prove 

that the defendant committed the crime, that the defendant did 

not have to present any evidence or prove anything, that if the jury

had any reasonable doubt, it should find the defendant not guilty, 

and that if the jury was convinced beyond a reasonable doubt that 

the defendant was not justified in using deadly force, it should find 

him guilty if all the elements of the crime had been proved. Since 

jurors are presumed to follow the law as explained to them, the 

defendant’s jury properly evaluated his self-defense claim. Davis 

v. State, 121 So. 3d 462, 492 (Fla. 2013).

On appeal, the defendant argues that because the trial court 

stated the defendant’s self-defense claim was a question for the 

jury, the trial court failed to apply the correct standard of proof 

under section 776.032. Even if the trial court failed to apply the 

correct standard, the defendant would not be entitled to another 

self-defense immunity hearing, but for this Court’s holding in 

Aviles-Manfredy, because he went to trial and his self-defense 

immunity claim was fully and properly litigated. 

I believe that we erred in adopting the holding of Martin in 

Aviles-Manfredy. Because the defendant did not preserve his 

argument that he was entitled to a new self-defense immunity 

hearing under Martin and Aviles-Manfredy, this is not an 

appropriate case for this Court to revisit Aviles-Manfredy en banc. 

Nevertheless, since the supreme court has granted review in 

Martin and Love, I expect that the law of self-defense immunity 

will soon be clarified. 

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9

Andy Thomas, Public Defender, and Barbara J. Busharis, 

Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Virginia Chester Harris, 

Assistant Attorney General, Tallahassee, for Appellee.