Harvey M. Hill v. State

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

HARVEY M. HILL,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

No. 4D13-3672

[July 16, 2014]

Petition for writ of prohibition to the Circuit Court for the Fifteenth

Judicial Circuit, Palm Beach County; John S. Kastrenakes, Judge; L.T.

Case No. 2009CF006916AMB.

Carey Haughwout, Public Defender, and Amy Lora Rabinowitz,

Assistant Public Defender, West Palm Beach, and Cherry Grant of Good-

Earnest Law, P.A., Lake Worth, for petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale

Surber, Assistant Attorney General, West Palm Beach, for respondent.

EN BANC

STEVENSON, J.

Harvey Hill petitions for a writ of prohibition seeking review of an order

denying his motion to dismiss based on self-defense immunity from

prosecution. We grant the petition, remand for further proceedings, and

sua sponte hear this matter en banc to clarify some overly-broad language

in State v. Hill, 95 So. 3d 434 (Fla. 4th DCA 2012), the unintended

consequences of which led the trial judge to enter the order on review. As

this decision will explain, a defendant engaged in an unlawful activity is

not necessarily disqualified from seeking self-defense immunity under

certain provisions of the “Stand Your Ground” law, Florida Statutes

Chapter 766. We recede from any language in State v. Hill suggesting the

contrary.

State v. Hill

To better understand the present posture of this case, we must begin

with State v. Hill, where the circumstances and procedural history

underlying this same prosecution were discussed:

The defendant was charged by information with aggravated

battery with a firearm (count I), carrying a concealed firearm

(count II), felon in possession of a firearm or ammunition

(count III), and retaliation against a witness (count IV). Prior

to trial, the defendant filed a motion to dismiss count I,

alleging that his use of force that led to the charge was

justified under the Stand Your Ground law. During the

hearing on the defendant’s motion, the defendant testified

that he was involved in an altercation with Anton Peavy and

Andre Solomon regarding a woman with whom he had been

sexually involved. Peavy and Solomon approached the

defendant while he was sitting on his porch and began

questioning him. Solomon had a gun and the two men were

much larger in size than the defendant. According to the

defendant, Peavy “snapped” and both Peavy and Solomon

“rushed” him. The defendant could not flee because he was

cornered on the porch. The defendant pulled out a gun that

he had in his pocket and shot Peavy once in the stomach. The

defendant had previously been convicted of two felonies. The

trial court reasoned that the defendant’s crime of possession

of a firearm by a convicted felon did not preclude him from

seeking dismissal under the Stand Your Ground law.

95 So. 3d at 434–35.

The defendant’s motion to dismiss relied on section 776.013(3), Florida

Statutes (2009), which provides:

A person who is not engaged in an unlawful activity and who

is attacked in any other place where he or she has a right to

be has no duty to retreat and has the right to stand his or her

ground and meet force with force, including deadly force if he

or she reasonably believes it is necessary to do so to prevent

death or great bodily harm to himself or herself or another or

to prevent the commission of a forcible felony.

Id. at 435 (emphasis added). The State argued that the defendant, a

convicted felon, was not entitled to immunity because he was engaged in

unlawful activity by having possession of the firearm. The trial court’s

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order granting the motion to dismiss rejected this argument and found

that the “unlawful activity” exception in this statute applies only to a

separately-charged forcible felony and does not include other non-forcible

felonies which occur at the same time as the felony that leads to the self-

defense claim. The trial court ruled that the defendant had established by

a preponderance of the evidence that he was justified in using deadly force

under section 776.013. The court concluded that, pursuant to section

776.013(1)(a)–(b), there was a presumption that the defendant’s use of

deadly force was reasonable because the shooting occurred on his front

porch.

The State appealed from the dismissal of the aggravated battery with a

firearm charge, and we reversed. We explained:

This court recently held that “possession of a firearm by a

convicted felon qualifies as ‘unlawful activity’ within the

meaning of the Stand Your Ground law.” Dorsey v. State, 74

So. 3d 521, 527 (Fla. 4th DCA 2011). As such, the defendant’s

crime of possession of a firearm by a convicted felon precludes

him from seeking immunity under the Stand Your Ground law.

Here, the defendant used the very instrumentality that he was

not lawfully allowed to possess to injure his alleged assailant.

Id. (emphasis added).

Hill v. State

On remand, the defendant again moved to dismiss, but this time cited

section 776.012(1) as the basis for claiming justifiable use of deadly force

and seeking immunity.1 Section 776.012(1) provides that a person

attacked is justified in using deadly force to defend themselves and has no

duty to retreat if “[h]e or she reasonably believes that such force is

necessary to prevent imminent death or great bodily harm to himself or

herself.” Unlike section 776.013, section 776.012(1) does not mention that

the protections of the statute are unavailable to a person engaged in an

unlawful activity. Nevertheless, the trial court found that this court’s

decision in State v. Hill precluded consideration of the defendant’s motion

due to the language in the opinion prohibiting a felon in possession of a

firearm from claiming self-defense immunity “under the Stand Your

Ground law.” Hill, 95 So. 3d at 435. Hill now seeks review of the trial

court’s denial of this second motion to dismiss. Because we now clarify

1The motion to dismiss that was originally granted cited only section 776.013(3),

Florida Statutes (2009), and did not refer to section 776.012(1).

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that the holding in State v. Hill was indeed applicable only to the section

of the Stand Your Ground law which was at issue in that case—section

776.013(3)—we grant the petition.

Analysis

Justifiable use of force is governed by the provisions of Chapter 776,

Florida Statutes (2009). Chapter 776 was significantly revamped in 2005

and, since then, has been generally referred to as the “Stand Your Ground”

law. Ch. 2005-27, §§ 1–4, at 200–02, Laws of Fla. Section 776.012,

Florida Statutes (2009), sets out when the use of force, including deadly

force, in defense of person is permissible and provides:

776.012. Use of force in defense of person.

A person is justified in using 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. However, a person is justified in the use of

deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that 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; or

(2) Under those circumstances permitted pursuant to s.

776.013.

(emphasis added). The 2005 Stand Your Ground amendments, which are

at the center of this controversy, added the italicized language above to

this section. Ch. 2005–27, Laws of Fla. The addition of the words “and

does not have a duty to retreat” to section 776.012 had the effect of

abrogating any common law duty to retreat before using deadly force

outside the home under the circumstances indicated therein.

The Stand Your Ground amendments also created new section

776.013, Florida Statutes (titled “Home protection; use of deadly force;

presumption of fear of death or great bodily harm”). Subsection (1)

establishes a presumption that a person has the requisite fear necessary

to use deadly force in certain circumstances—such as when an intruder

has forcibly entered the person’s home or occupied vehicle. Importantly,

this newly-created presumption does not apply to one engaged in unlawful

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activity or where the dwelling, residence, or vehicle is being used for

unlawful activity. § 776.013(2)(c), Fla. Stat. (2009).

Subsection (3) extends the so-called Stand Your Ground protections

from the home to any other place that the person attacked has a right to

be and, similar to subsection (2)(c), does not apply if the person attacked

is engaged in an unlawful activity:

A person who is not engaged in an unlawful activity and who

is attacked in any other place where he or she has a right to be

has no duty to retreat and has the right to stand his or her

ground and meet force with force, including deadly force if he

or she reasonably believes it is necessary to do so to prevent

death or great bodily harm to himself or herself or another or

to prevent the commission of a forcible felony.

§ 776.013(3), Fla. Stat. (2009) (emphasis added). The parameters for

permissible use of force in this section are very similar to those in section

776.012(1), and both do away with the duty to retreat altogether in similar,

if not identical, circumstances.

Section 776.032, perhaps the heart of the Stand Your Ground

amendments, provides immunity from criminal prosecution and civil

action when the use of force is permissible under section 776.012 (defense

of person), section 776.013 (home protection or where person is standing

in a place they have the right to be), and section 776.031 (defense of

others). In granting the original motion to dismiss, the trial court

erroneously concluded that Hill was entitled to the presumption of section

776.013(1) and immunity under section 776.032, despite the fact that he

was a felon in possession of an illegal firearm which was used in response

to his attack. We maintain our conclusion in State v. Hill that possession

of a firearm by a convicted felon constitutes “unlawful activity” which

makes Hill ineligible to receive the benefit of self-defense immunity from

prosecution derived from section 776.013(3). Accord Little v. State, 111

So. 3d 214, 221 (Fla. 2d DCA 2013) (holding that a person engaged in an

unlawful activity, such as possession of an illegal firearm by a felon, would

not be entitled to claim immunity under section 776.032(1) based on the

use of force as permitted in section 776.013(3)).

On the other hand, Hill’s present motion for immunity travels under

section 776.012(1) (use of force in defense of person), which contains no

language precluding the justifiable use of deadly force where the person

claiming self-defense is engaged in an unlawful activity. And, section

776.032(1) expressly extends immunity from prosecution to those who use

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defensive force as permitted by section 776.012. Because Chapter 776

contains separate provisions addressing the permissible use of force, each

must be analyzed individually. In State v. Wonder, 128 So. 3d 867, 870

(Fla. 4th DCA 2013), this court has already expressed agreement with the

Second District’s extensive legal analysis in Little v. State, concluding that

the plain language of 776.032 can be understood as granting immunity to

a person who qualifies under either 776.012(1) or 776.013(3) and that the

“unlawful activity” exception does not exist under section 776.012(1).

Thus, we recede from our statement in Hill that a felon in possession of a

firearm cannot claim immunity “under the Stand Your Ground law”

because the statement unintentionally went beyond the statutory

provision at hand—section 776.013(3).2

The interplay of section 776.012 and section 776.013(3)

Section 776.012 provides that a person is justified in using force,

including deadly force, and has no duty to retreat if he or she reasonably

believes that 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.” § 776.012(1). Section 776.013(3)

provides that a person who is attacked in any place where he or she has

the right to be, and is not engaged in an unlawful activity, has no duty to

retreat and may stand his or her ground and meet force with force,

including deadly force if he or she reasonably believes it “is necessary to

do so to prevent death or great bodily harm to himself or herself or another

or to prevent the commission of a forcible felony.” The two sections appear

to overlap to the extent that anyone claiming self-defense under the

language of section 776.013(3) could also reasonably claim the defense

under the language of section 776.012(1) as there appears to be little

difference between a reasonable belief that the defensive force is necessary

“to prevent imminent death or great bodily harm” (section 776.012(1)

(emphasis added)), and a reasonable belief that the force is necessary to

“prevent death or great bodily harm” (section 776.013(3)). Thus, the State

argues that we should not read these statutes so as to make the “unlawful

activity” limitation contained in section 776.013(3) meaningless and the

statutory scheme contradictory. We are not at liberty, however, to rewrite

the statute.

2 The Second District certified conflict with Hill “[t]o the extent that the . . .

decision . . . can be read as holding that a defendant who is engaged in an

unlawful activity is not entitled to immunity under section 776.032(1).” Little,

111 So. 3d at 222. This opinion should eliminate any perceived conflict between

our courts’ positions on this issue.

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There is no clear indication anywhere in the chapter that the right to

seek immunity from prosecution under section 776.012 is limited to those

not engaged in unlawful activity. Had this been the actual intent, then the

legislature could have easily accomplished this by including a simple

statement to this effect in section 776.032 or in section 776.012. We agree

with Judge Northcutt that any ambiguity created by contradictory

language in sections 776.012(1) and 776.013(3) requires that these

provisions of the criminal code be strictly construed most favorably to the

accused. Little, 111 So. 3d at 223 (Northcutt, J., concurring) (citing §

775.021(1), Fla. Stat. (2009)).

We note that section 776.012 was recently amended and section

776.012(2) now reads in part that “[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.” (emphasis added). See

Ch. 2014-195, § 3, 2014 Fla. Sess. Law Serv. (West) (to be codified at §

776.012, Fla. Stat.). The effective date of the new amendment is June 20,

2014. Id. We believe that the legislature’s insertion of the above-

emphasized language in the statute supports our conclusion in this case.

It is a well-established presumption that the legislature intends to change

the law when it amends a statute. See Mikos v. Ringling Bros.–Barnum &

Bailey Combined Shows, Inc., 497 So. 2d 630, 633 (Fla. 1986) (“[T]here is

a strong presumption that, when the legislature amends a statute, it

intends to alter the meaning of the statute.”); Capella v. City of Gainesville,

377 So. 2d 658, 660 (Fla. 1979) (“When the legislature amends a statute

by omitting words, we presume it intends the statute to have a different

meaning than that accorded it before the amendment.”). We also recognize

that, at times, a mere change in the language of a statute “does not

necessarily indicate an intent to change the law” because the intent may

be to clarify what was doubtful and to erase misapprehension as to

existing law. State ex rel. Szabo Food Servs., Inc. of N.C. v. Dickinson, 286

So. 2d 529, 531 (Fla. 1973). In the instant case, however, the existing

statutory language was clear, and there was no doubt and no conflict in

the case law as all of the reported cases which directly addressed the issue

reached the same conclusion as to the correct interpretation of Florida

Statutes section 776.012. See Little; Wonder.

Conclusion

In summary, Hill is not precluded from claiming justifiable use of force

under section 776.012(1), or from seeking immunity from prosecution

pursuant to section 776.032. The holding in State v. Hill was applicable

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to the specific provisions of the Stand Your Ground law at issue in that

case, namely section 776.013(3).3 We quash the trial court’s order which

denied Hill’s second motion to dismiss and remand for further proceedings

consistent with this opinion. On remand, the trial court shall determine

whether Hill was justified in using deadly force under section 776.012(1),

and, therefore, entitled to immunity from prosecution pursuant to section

776.032.

Petition granted.

DAMOORGIAN, C.J., WARNER, GROSS, TAYLOR, MAY, CIKLIN, GERBER, LEVINE,

CONNER, FORST and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

3 We acknowledge that we adhered to the holding of Hill in Bragdon v. State, 123

So. 3d 654 (Fla. 4th DCA 2013) (certifying conflict with Little), petition for review

granted, No. SC13-2083 (Fla. July 2, 2014). To the extent that the petitioner

there may have relied on section 776.012 instead of section 776.013(3), Bragdon

may need to be remanded for further proceedings.

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