FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D2022-3034

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HUNTER SMITH,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

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Petition for Writ of Prohibition—Original Jurisdiction.

June 19, 2024

TANENBAUM, J.

Currently pending in the Fourteenth Judicial Circuit Court 

for Bay County is a charge against Hunter Smith for second-degree 

murder with a firearm. This charge came after he shot and killed 

the deceased in a motel room where Smith and others were doing 

drugs. Smith asks this court to intervene by extraordinary writ to 

prevent the circuit court from allowing the prosecution of that 

charge to proceed. As Smith puts it, he is entitled to self-defense 

immunity under section 776.012(2), Florida Statutes (2020). We 

agree, and the writ shall issue. See Boston v. State, 326 So. 3d 673, 

677 (Fla. 2021) (providing that “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 prohibition”); Tsavaris v. 
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Scruggs, 360 So. 2d 745, 747 (Fla. 1977) (approving appellate use 

of prohibition to enforce statutory immunity against criminal 

prosecution).

Smith filed a motion to dismiss based on his immunity claim, 

and the circuit court held an evidentiary hearing. In denying the 

motion, the circuit court made the following findings, which the 

parties do not seem to dispute. The incident occurred in a motel 

room where Smith went to sell drugs. Several of the room’s 

occupants were smoking methamphetamine and hanging out. 

After the sale concluded, Smith remained in the room and smoked

roxy pressed with fentanyl. Eventually, Smith passed out on the 

couch. After coming to, Smith heard his girlfriend (who was not 

present in the room) may have cheated on him, so he pulled out a 

gun from a pouch he had on him. Someone who was present at the 

time testified at the hearing that she feared for her life and asked 

Smith to leave the motel room. Smith then put the gun away.

It was at this point, though, that the deceased confronted 

Smith about the gun Smith had just restowed in its pouch. The 

deceased was so bold as to demand that Smith hand over the gun;

otherwise, the deceased threatened, he would take it. This 

confrontation escalated to the point where the deceased punched 

Smith in the face, breaking and knocking off the glasses Smith was 

wearing. The deceased threw more punches as the two men moved 

to the corner of the motel room.

According to the circuit court, Smith was pressed up behind 

the inward-facing door to the room and had no reasonable means 

of escape. Smith at this point asked the deceased to stop, crouched 

down, and used his left arm to protect his head from continued 

punching from behind by the deceased. Aware of the violent 

tendencies of the deceased, Smith pulled the gun from its pouch 

with his right hand, put it under his raised left arm, and fired eight 

shots into the torso of the deceased behind him. Smith then left the 

motel room and called the police.

The circuit court noted that, technically, the altercation was 

“a fist fight,” but

the circumstances facing [Smith] at the time—namely, 

the men’s positioning in the room and [Smith’s]
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knowledge of the victim’s violent nature—allows this 

Court to find that [Smith’s] belief that the use of deadly 

force was required to prevent death or great bodily harm 

was reasonable.

This determination is unchallenged, and we accept it as true.

Based on this determination, Smith should be entitled to 

immunity from prosecution for the shooting death. Section 

776.012(2) provides for the following:

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 or herself 

or another or to prevent the imminent commission of a 

forcible felony. . . .

Because Smith used the force permitted by this statute, he was 

“justified in such conduct and is immune from criminal 

prosecution.” § 776.032(1), Fla. Stat.

The circuit court nevertheless denied Smith’s claim to 

immunity because “he was engaged in criminal activity at the time 

he used deadly force” and because he “was in a place he did not 

have a right to be at the time he used deadly force.” The court 

appears to have misapplied the last sentence of subsection two 

(otherwise block-quoted above):

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(2), Fla. Stat. (emphasis supplied). The point of 

highlighting the text here is to emphasize the difference between 

the “self-defense” immunity allowed by these statutory provisions, 

on the one hand; and the entitlement to “stand your ground,” not 

retreat, and use deadly force under certain circumstances, on the 

other. That Smith may have been engaged in a crime and may have 
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been in a place where he did not have a right to be just means that 

he did have a duty to retreat—if he reasonably could—before he 

could use deadly force to defend himself. According to the circuit 

court, he did not have a reasonable pathway of retreat, and we 

read section 776.012(2), under such circumstances, as then 

justifying Smith’s conduct rather than obviating completely his

right to use deadly force to defend himself against a threat of death 

or great bodily harm.

Indeed, the circuit court here found, in no uncertain terms, 

that Smith—huddled in a corner of the motel room behind the 

inward-opening door, shielding himself from the deceased’s 

repeated punches—had “exhausted all reasonable means of 

escape.” This quote is redolent of a different statute, which the 

circuit court also may have had in mind, and which we now 

address. Section 776.041, Florida Statutes, completely forecloses 

the justification and immunity we have been discussing for 

someone who “[i]nitially provokes the use or threatened use of 

force against himself or herself, unless:

(a) Such force or threat of force is so great that the person 

reasonably believes that he or she is in imminent danger 

of death or great bodily harm and that he or she has 

exhausted every reasonable means to escape such danger

other than the use or threatened use of force which is 

likely to cause death or great bodily harm to the 

assailant[.]

Id. (2)(a) (emphasis supplied).* The circuit court determined that 

Smith was the initial aggressor, and the evidence amply supported 

* Immunity also is entirely foreclosed—but with no equivalent 

exception—for someone who was engaged in a “forcible felony” at 

the time. Id. (1). A “forcible felony” includes “aggravated assault” 

and “any other felony which involves the use or threat of physical 

force or violence against any individual.” § 776.08, Fla. Stat. The 

circuit court determined that Smith’s “display and pointing of the 

firearm likely constitute[d] . . . aggravated assault.” The court, 

however, appears to have denied immunity in part based on 

Smith’s supposed engagement in criminal activity and its 

mistaken reading of section 776.012(2), discussed above. At all 
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that conclusion. But as we already mentioned, the circuit court 

also found that both criteria set out in paragraph (a) had been met. 

Cf. State v. Floyd, 186 So. 3d 1013, 1021 (Fla. 2016) (explaining 

that the standard jury instruction that pertains to section 

776.041(2)(a) “accurately communicate[s] the law to the jury” as 

an exception the initial aggressor may use to claim immunity).

Section 776.041, in turn, does not foreclose Smith’s entitlement to 

immunity. 

Section 776.032(4), Florida Statutes, provides that, “[i]n 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 [State] to overcome the 

immunity.” Smith presented a prima facie case, and the State 

failed to meet its burden to overcome Smith’s entitlement to 

immunity. We grant his petition for relief. The circuit court may 

not proceed further in case number 2021-CF-2771 on the State’s 

pending charge, which should be dismissed. Smith must be 

released from detention on that charge immediately. 

Writ ISSUED. 

ROBERTS and LONG, 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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John D. Middleton and Kyle Macomber of Middleton & Middleton, 

P.A., Melrose, for Petitioner. 

events, there is insufficient evidence to support a finding that 

Smith—at the time the deceased attacked him—continued to be 

engaged in a forcible felony, given that Smith had already put the 

gun back in the pouch. We conclude on this record that the 

foreclosure set out in section 776.041(1) does not apply here. 
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Ashley Moody, Attorney General, Michael Schaub, Assistant 

Attorney General, Tallahassee, for Respondent.