Edward Lamont Hicks v. State of Florida

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D17-1830

_____________________________

EDWARD LAMONT HICKS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

_____________________________

On appeal from the Circuit Court for Duval County.

Waddell A. Wallace, Judge.

June 12, 2019

WINSOR, J.

In 2015, Edward Hicks—then charged with attempted

murder—argued he was entitled to Stand-Your-Ground immunity.

At the two-day SYG hearing, he and the State presented widely

divergent versions of events. Both sides agreed, though, that Hicks

bore the burden of proof.

The trial court denied the motion, concluding Hicks had not

met his burden. The State later reduced the murder charge

pursuant to a plea agreement, and Hicks pleaded guilty to

aggravated battery with a deadly weapon, along with possession of

a firearm by a convicted felon. He got seven years.

In 2017, after Hicks initiated this appeal but before he filed

his initial brief, the Florida Legislature amended section 776.032,

Florida Statutes, which governs SYG immunity. Under the

amended provision, once a criminal defendant raises “a prima facie

claim of self-defense immunity,” then “the burden of proof by clear

and convincing evidence is on the party seeking to overcome the

immunity.” Id. § 776.032(4). Before the amendment, the statute

was silent on which side had the burden of proof, but the supreme

court had held it was the defendant’s burden. Bretherick v. State,

170 So. 3d 766, 775 (Fla. 2015).

Hicks now appeals the trial court’s SYG decision. Arguing that

the legislative change was retroactive, Hicks contends the trial

court erred in assigning him the burden of proof. He asks us to

reverse and instruct the trial court to reconsider the motion in

light of the new law.

Florida’s DCAs have split as to whether the recent legislative

change applies to offenses committed before its enactment.

Compare, e.g., Martin v. State, -- So. 3d. -- No. 2D16-4468 (Fla. 2d

DCA May 4, 2018) (amendment retroactive), with Love v. State,

247 So. 3d 609 (Fla. 3d DCA) (amendment not retroactive), review

granted, No. SC18-747, 2018 WL 3147946 (Fla. Jun. 26, 2018).

This court has sided with those arguing the change does apply to

those offenses, see Commander v. State, 246 So. 3d 1303, 1303-04

(Fla. 1st DCA 2018), and the conflict is pending before the Florida

Supreme Court, Love, No. SC18-747. Although Commander held

the change applies regardless of when the offense occurred, it does

not address a case like this one, in which the offense and the SYG

hearing occurred before the legislative change. See 246 So. 3d at

1304 (noting that placing burden on State was “consistent with the

statute in effect at the time of the evidentiary hearing”). But

regardless of the statute’s applicability in that circumstance, we

must affirm because the sole issue Hicks now raises on appeal—

which party had the burden—is not dispositive of his case. 1

1 Similarly, we need not decide whether (i) Hicks’s

affirmatively agreeing below that he had the burden and (ii) his

failure to object to the court’s placing the burden on him provide

alternate, independent bases to affirm. Cf., e.g., § 924.051(3), Fla.

Stat. (“An appeal may not be taken from a judgment or order of a

trial court unless a prejudicial error is alleged and is properly

2

Generally, a defendant who pleads guilty cannot challenge his

conviction on appeal. See Fla. R. App. P. 9.140(b)(2)(A); see also

Lewis v. State, 262 So. 3d 859, 861 (Fla. 1st DCA 2018). But a

defendant who pleads guilty, like Hicks did, “may expressly

reserve the right to appeal a prior dispositive order of the lower

tribunal, identifying with particularity the point of law being

reserved.” Fla. R. App. P. 9.140(b)(2)(A).

The issue of who had the burden—the only issue Hicks now

advances—is plainly not dispositive. Hicks does not ask us to hold

that the trial court should have granted immunity; he asks only

that we remand for “a new immunity hearing under the current

evidentiary standard.” Init. Br. at 30. That would mean his guilty

plea would be followed by additional evidentiary proceedings

leading (perhaps) to another conviction or (perhaps) to a dismissal.

preserved or, if not properly preserved, would constitute

fundamental error.”); Smith v. State, 598 So. 2d 1063, 1066 (Fla.

1992) (holding that decisions announcing new rules of law “must

be given retrospective application by the courts of this state in

every case pending on direct review or not yet final,” but explaining

that “[t]o benefit from the change in law, the defendant must have

timely objected at trial if an objection was required to preserve the

issue for appellate review”); cf. also Eutzy v. State, 541 So. 2d 1143,

1145 (Fla. 1989) (“[T]here is nothing in Booth [v. Maryland, 482

U.S. 496 (1987)] which suggests that that decision should be

retroactively applied to cases in which the claim was not preserved

by a timely objection”). In other words, we need not decide

whether—as the dissent would hold—the effect of the 2017

legislation was to invalidate judgments like Hicks’s, judgments

that were final in the trial court before the legislation’s enactment,

and where the defendant had raised no issue regarding the burden.

Finally—and relatedly—we need not decide whether Hicks

“identif[ied] with particularity” the burden issue. See Fla. R. App.

P. 9.140; see also id., comm. notes (“This rule also incorporates the

holding in State v. Ashby, 245 So. 2d 225 (Fla. 1971), and is

intended to make clear that the reservation of the right to appeal

a judgment based on the plea of no contest must be express and

must identify the particular point of law being reserved; any issues

not expressly reserved are waived.” (emphasis added)).

3

If Hicks won all the relief he seeks on appeal, he may (or may not)

end up going to trial. And it is settled that “[a]n issue is dispositive

only when it is clear that there will be no trial, regardless of the

outcome of the appeal.” Williams v. State, 134 So. 3d 975, 976 (Fla.

1st DCA 2012); accord Morgan v. State, 486 So. 2d 1356, 1357 (Fla.

1st DCA 1986).

If we entertained Hicks’s argument and agreed with him, we

would have to remand for more proceedings. And that would turn

this into precisely the type of piecemeal appeal that the rule and

the cases that preceded it sought to prevent. See Churchill v. State,

219 So. 3d 14, 16 (Fla. 2017) (noting that the court had “reasoned

that the policies underlying the decision in [State v. Ashby, which

preceded the rule] were ‘poorly served’ and ‘thwarted’ when a

defendant was allowed to appeal nondispositive rulings because

the defendant would still face the prospect of trial even if he or she

prevailed on appeal, which would prolong rather than expedite

resolution of the case”); see also Brown v. State, 376 So. 2d 382, 384

(Fla. 1979) (“Because of the nondispositive nature of the appeal,

the defendant faces the prospect of a trial even if he prevails on

appeal. The inevitable is not avoided but merely postponed, thus

further burdening the already severely taxed resources of our

courts.”). Neither rule 9.140 nor precedent applying it would allow

that.

It is true that the State stipulated that the issue of whether

Hicks was entitled to immunity was dispositive. By doing so, the

State agreed that if we ruled on appeal that Hicks was entitled to

immunity, the State would not pursue the case further. See

Churchill, 219 So. 3d at 17 (“[T]he stipulation of dispositiveness

establishes that the State cannot or will not continue with its

prosecution if the defendant prevails on appeal.”). But Hicks does

not ask us to hold that he was entitled to immunity; he elected to

argue only that the State should have had the burden. And the

State certainly did not stipulate that if Hicks won an appeal about

a nondispositive procedural matter that it would not continue to

pursue its case. Indeed, both Hicks and the dissent presume the

State will pursue its case: they both insist that we should remand

4

so that the State can do just that. 2 This only confirms that the

issue on appeal is not dispositive of Hicks’s entire case. 3

We must AFFIRM.4

2 We do not understand why the dissent says we hold nobody

can plead guilty while reserving a SYG issue. We do not. Had Hicks

argued here that the trial court should have granted immunity, we

would address that argument (a dispositive argument). But Hicks

has abandoned that appellate argument, raising instead only a

plainly nondispositive issue.

3 We cannot accept the dissent’s view that further delay for

supplemental briefing is warranted. Nor can we accept the

dissent’s view that we are acting unfairly by “sua sponte rais[ing]

new issues.” There is a difference between raising new grounds for

reversal (which we should not do, see Anheuser-Busch Cos., Inc. v.

Staples, 125 So. 3d 309, 312 (Fla. 1st DCA 2013)), and affirming

based on any basis the record supports (which we must do, see

Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 645

(Fla. 1999)). It is the appellant’s burden to show we must reverse,

and he cannot meet that burden without overcoming all bases for

affirmance. See Applegate v. Barnett Bank of Tallahassee, 377 So.

2d 1150, 1152 (Fla. 1979); see also State v. Pitts, 936 So. 2d 1111,

1133 (Fla. 2d DCA 2006) (noting that appellate courts should

affirm when there is a basis to do so “even if the specific basis for

affirmance has not been articulated by the appellee”); Powell v.

State, 120 So. 3d 577, 592 (Fla. 1st DCA 2013) (noting that

“[c]ourts issue per curiam affirmances with regularity without

briefing from appellees”).

4 We have been inconsistent as to dispositions in this

situation, sometimes dismissing for lack of jurisdiction, see, e.g.,

K.N.B. v. State, 982 So. 2d 1277 (Fla. 1st DCA 2008); Thomas v.

State, 948 So. 2d 968, 968 (Fla. 1st DCA 2007), sometimes

exercising jurisdiction and affirming, see, e.g., Terry v. State, 149

So. 3d 113 (Fla. 1st DCA 2014); Williams v. State, 134 So. 3d 975,

976 (Fla. 1st DCA 2012). In Leonard v. State, the Florida Supreme

Court said we should summarily affirm in this circumstance,

rather than dismiss. 760 So. 2d 114, 119 (Fla. 2000); see also Paulk

v. State, 765 So. 2d 147, 148 (Fla. 1st DCA 2000) (applying

5

LEWIS, J., concurs; KELSEY, J., dissents with opinion.

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

KELSEY, J., dissenting.

Hicks lost his self-defense-immunity hearing and entered a

plea in which both he and the State stipulated, and the lower court

ruled, that the denial of immunity was dispositive for purposes of

appeal under Florida Rule of Appellate Procedure 9.140(b)(2)(A)

(allowing defendants to “expressly reserve the right to appeal a

prior dispositive order of the lower tribunal, identifying with

particularity the point of law being reserved”). We and other courts

have exercised jurisdiction in this procedural posture and granted

new immunity hearings to litigants in Hicks’s position post-plea.

The majority nevertheless denies Hicks this relief by viewing his

appeal narrowly as seeking only our legal ruling on retroactive

application of the 2017 amendments to section 776.032(4), Florida

Statutes¸ and not directly seeking our case-dispositive ruling on

the underlying issue of immunity under the amended statute—

which we cannot do until after the lower tribunal applies the new

statute in the first instance, which creates a closed loop from which

Hicks cannot escape. This overly-narrow view is factually

inaccurate. Furthermore, legally, the majority view improperly

equates a new immunity hearing with prosecution so as to defeat

dispositivity under rule 9.140, or alternatively finds no

dispositivity because of the possibility of trial if Hicks were to lose

an immunity hearing under the new statute—overlooking that the

State cannot prosecute Hicks after agreeing to a plea. The

majority’s reasoning improperly creates new precedent precluding

Leonard). But cf. Churchill, 219 So. 3d at 17 (“[T]he district courts

have jurisdiction to review the merits of a conditional no contest

plea when the State stipulates that an issue reserved for appeal is

dispositive of the case.” (emphasis added)).

6

Hicks and similarly-situated litigants from obtaining a new

immunity hearing under a more favorable burden and quantum of

proof, to which they are entitled under our precedent. Moreover,

the majority adopts this rationale sua sponte, without giving the

parties the chance to be heard on it. Accordingly, respectfully, I

dissent from the majority opinion as to both procedure and merits.

I. Procedure.

As to procedure, I dissent from the majority’s disposition of

this appeal on grounds not preserved or ruled upon below, not

raised in briefing, not discussed at oral argument, and adopted

without the benefit of supplemental briefing. The majority’s

overly-narrow view of Hicks’s argument has the effect of holding

that orders denying self-defense immunity cannot be appealed as

part of a plea in which such orders are stipulated to be dispositive

under rule 9.140(b)(2)(A). In contrast to this new rule of law, the

sole issue in briefing and oral argument was whether the 2017

statutory amendment shifting the burden of proof to the State in

stand-your-ground hearings should apply retroactively to this

case, and Hicks made it clear that he was arguing the procedural

issue to protect his substantive right to immunity. We have

already resolved that issue in favor of retroactivity. Commander v.

State, 246 So. 3d 1303, 1303-04 (Fla. 1st DCA 2018) (holding

legislative change to burden of proof in stand-your-ground

hearings applies retroactively). Our position conflicts with that of

other district courts, and the conflict is pending before the Florida

Supreme Court. Love v. State, 247 So. 3d 609 (Fla. 3d DCA)

(finding amendment not retroactive), review granted, No. SC18-

747, 2018 WL 3147946 (Fla. June 26, 2018). That is the sole issue

preserved, briefed, and argued; and therefore we should rule in

accordance with Commander, reversing and remanding for a new

immunity hearing under the 2017 law, and certifying conflict with

Love.

The majority nevertheless sua sponte raises new issues and

resolves the appeal on both legal and factual grounds the parties

have had no opportunity to address (i.e., dispositivity in this

context, and the scope of Hicks’s arguments on appeal).

Furthermore, the majority disposes of the appeal on grounds

directly contrary to an express stipulation of dispositivity and

7

appealability by both parties below, which the trial judge expressly

and repeatedly approved. This is not fair to the parties, and the

better practice would be to allow supplemental briefing prior to

decision.

Whether appellate courts have the authority to rule on

grounds not preserved below and not argued on appeal is one issue,

and whether and through what procedure they should exercise any

such authority sua sponte is another. See, e.g., Robert Martineau,

Considering New Issues on Appeal: The General Rule and the

Gorilla Rule, 40 Vand. L. Rev. 1023, 1023 n.a, 1053-56 (1987)

(noting that, like the proverbial 800-pound gorilla that can sleep

“anywhere it wants,” an appellate court can, under certain

circumstances, resolve issues on grounds raised sua sponte);

Ronald Offenkranz & Aaron Lichter, Sua Sponte Actions in the

Appellate Courts: The “Gorilla Rule” Revisited, 17 J. App. Prac. &

Process 113, 116 n.14 (2016) (noting the exercise of sua-sponte

review is frequently criticized as a deprivation of procedural due

process); Allan D. Vestal, Sua Sponte Consideration in Appellate

Review, 27 Fordham L. Rev. 477, 494 (1958) (“When considered sua

sponte . . . [n]either [party] has had any opportunity to consider

the matter, and both are now bound by res judicata grounded on

considerations which represent not well reasoned positions for the

litigants, but rather only the fortuitous decision of a wayward

court.”) (cited with similar authorities in Miami Dade College v.

Allen, No. 3D18-2218, 2019 WL 1781366 at *4 (Fla. 3d DCA Apr.

24, 2019) (Miller, J., specially concurring)); E. King Poor & James

Goldschmidt, But No One Argued That: Sua Sponte Decisions on

Appeal, DRI For the Defense, Oct. 2015, at 62 (57 No. 10)

(collecting authorities and advocating for very limited exercise of

sua-sponte appellate decision-making); see also Bainter v. League

of Women Voters of Fla., 150 So. 3d 1115, 1126 (Fla. 2014) (“‘Basic

principles of due process’—to say nothing of professionalism and a

long appellate tradition—‘suggest that courts should not consider

issues raised for the first time at oral argument’ and ‘ought not

consider arguments outside the scope of the briefing process.’”)

(quoting Powell v. State, 120 So. 3d 577, 591 (Fla. 1st DCA 2013)).

In fairness, we should have allowed supplemental briefing on

this issue. See, e.g., Thorlton v. Nationstar Mortg., LLC, 257 So. 3d

596, 601 (Fla. 2d DCA 2018) (noting that “no due process violation

8

has occurred” through the court’s reliance on a new decision

released after conclusion of briefing, because the court allowed

supplemental briefing on the effect of the case). Supplemental

briefing seems especially advisable here in light of the majority’s

creation of new precedent that places a new obstacle in the way of

litigants seeking immunity. The underlying issue of retroactivity

is before the Florida Supreme Court, and could become moot if the

court decides that the 2017 amendment is prospective only; we

have time. As the appeal now stands, Hicks is left to seek

rehearing and rehearing en banc to overturn a decision already

made without benefit of prior adversarial testing, to which the

Court should be more amenable in this posture.

II. Merits.

A. Review of Orders Denying Self-Defense Immunity.

(1) Prohibition. The typical method of obtaining review of

orders denying self-defense immunity is a petition for a writ of

prohibition, on the premise that the trial court lacks authority to

proceed with trial. See Tynes v. State, 262 So. 3d 851, 852 (Fla. 1st

DCA 2018) (granting petition for prohibition where trial court

failed to give retroactive effect to 2017 SYG amendment); Rosario

v. State, 165 So. 3d 852, 854-55 (Fla. 1st DCA 2015) (holding that

prohibition lies to challenge denial of self-defense immunity); 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). Because prohibition by its very definition lies only to

prevent the unlawful exercise of a court’s jurisdiction, prohibition

would seem to be unavailable to litigants like Hicks who plead and

reserve a right of immediate appeal, with the State’s agreement

and the trial court’s approval as to dispositivity, since the plea

agreement itself forestalls any further prosecution and trial.

Research has revealed no cases in which prohibition was filed post-

plea.

(2) Plea with Reserved Appeal on Immunity. In this case,

Hicks lost his self-defense-immunity hearing, then entered a plea

reserving the right to appeal the denial of immunity, which the

parties stipulated and the trial court agreed was dispositive under

rule 9.140(b)(2)(A). We and other courts have allowed appeals post-

9

plea under these circumstances, when the denial of immunity was

identified as dispositive under rule 9.140(b)(2)(A). See, e.g.,

Whitham v. State, 44 Fla. L. Weekly D975, 2019 WL 1646073 (Fla.

2d DCA Apr. 17, 2019); Edwards v. State, 257 So. 3d 586 (Fla. 1st

DCA 2018); Arauz v. State, 171 So. 3d 160, 162 n.3 (Fla. 3d DCA

2015); Miles v. State, 162 So. 3d 169 (Fla. 5th DCA 2015); cf.

Heredia v. State, 43 Fla. L. Weekly D2613, 2018 WL 6186631 at *1

(Fla. 3d DCA Nov. 28, 2018) (affirming pre-trial immunity ruling

where defendant pleaded and appealed, because he did not reserve

right to appeal).

(3) Immunity Raised in Post-Trial Plenary Appeal. We,

along with the Second and Fifth Districts, have held the 2017

amendment to be retroactive; and have also entertained post-trial

appeals raising the pre-trial denial of immunity, and requesting a

new immunity hearing, which has been granted. Manley v. State,

2019 WL 1925280 (Fla. 2d DCA May 1, 2019); Feaster v. State, 44

Fla. L. Weekly D1103, 2019 WL 1868197 (Fla. 2d DCA Apr. 26,

2019); Horton v. State, 2019 WL 1781062 (Fla. 2d DCA Apr. 24,

2019); Rivera v. State, 44 Fla. L. Weekly D970, 2910 WL 1575868

(Fla. 2d DCA Apr. 12, 2019) (noting that harmless error analysis

is not available to defeat right to new immunity hearing; trial court

must disregard guilty verdict); Aviles-Manfredy v. State, 44 Fla. L.

Weekly D187, 2019 WL 116471 (Fla. 1st DCA Jan. 7, 2019);

Drossos v. State, 43 Fla. L. Weekly D2764, 2018 WL 6579755 (Fla.

2d DCA Dec. 14, 2018); Martin v. State, 43 Fla. L. Weekly D1016,

2018 WL 207471 (Fla. 2d DCA May 4, 2018); Boston v. State, 260

So. 3d 445 (Fla. 1st DCA 2018); Fuller v. State, 257 So. 3d 521, 539

(Fla. 5th DCA 2018) (reversing judgment and sentence for new

immunity hearing applying new burden of proof). In these cases, if

application of the new burden of proof results in a finding of

immunity, the judgments and sentences are vacated.

(4) Withdrawal of Plea, Followed by Prohibition. This

avenue of review has been suggested as available when the plea

was not knowing and voluntary, and in theory could be a remedy

if an appellate court rejected a post-plea appeal due to a faulty

reservation of right to appeal. See Heredia, 2018 WL 6186631 at

*1 (affirming order denying motion to dismiss under SYG law

because appellant failed to expressly reserve right to appeal, but

noting that he may have a right to file a motion for relief under

10

Fla. R. Crim. P. 3.850); Daniel v. State, 235 So. 3d 1003 (Fla. 2d

DCA 2017) (citing rule 3.850 as a potential remedy where state

did not stipulate to dispositivity and thus appellate court

dismissed appeal); Russ v. State, 230 So. 3d 510 (Fla. 2d DCA 2017)

(rejecting post-plea appeal for failure to have reserved right of

appeal that appellant believed was reserved, but noting the

availability of a motion to withdraw plea and seek relief under rule

3.850); Werner v. State, 828 So. 2d 499 (Fla. 3d DCA 2002)

(dismissing appeal where both parties conceded the issue reserved

was not dispositive, but allowing appellant to seek relief under

rule 3.850); Murphy v. State, 149 So. 3d 1163 (Fla. 1st DCA 2014)

(noting possibility of motion under rule 3.850 after appeal failed

for lack of stipulation of dispositivity); Cf. Lewis v. State, 251 So.

3d 310, 311 (Fla. 2d DCA 2018) (noting the lack of any deadline for

filing either motions to dismiss or prohibition in stand-your-

ground cases, which the court suggested could lead to procedural

abuse if delayed). However, the time limits on post-conviction

relief may present an obstacle. Research has not revealed a self-

defense-immunity case in which the defendant has withdrawn a

plea and filed for prohibition, which an appellate court then

entertained on the merits.

B. This Case.

(1) Procedure Below. This case involves category (2) above:

a plea with reservation of right to appeal the denial of stand-your-

ground immunity—which appeal the majority holds is unavailable

to Hicks even though we entertained it without question in

Edwards, 257 So. 3d at 586. The majority’s decision is thus in

conflict with our decision in Edwards; and in express and direct

conflict with the Second District’s decision in Whitham, 2019 WL

1646073.

At the conclusion of Hicks’s immunity hearing on August 4,

2016, the trial court determined that Hicks had not satisfied his

burden of proof, and the judge stated in open court the factual basis

on which immunity was denied. Distilled to its essence, the trial

judge’s view of the facts was that after the initial altercation

between Hicks and the alleged—and unarmed—aggressor, the

aggressor withdrew, and there was a short period of inactivity,

during which Hicks went back inside his apartment, got a gun,

11

came back out, and then shot the aggressor/now victim, including

two shots in the victim’s back. The trial judge found that under

these facts Hicks was not justified in using lethal force and

therefore was not entitled to immunity. The judge noted that

whereas the defense had the burden of proof at the immunity

hearing, there were issues of fact and credibility yet to be resolved

at trial.

At his March 21, 2017, plea hearing and as part of the plea

colloquy, Hicks’s counsel stated that Hicks would “reserve his right

to appeal [the lower tribunal’s] ruling on the stand your ground

hearing.” Counsel described this reservation as “jurisdictional in

nature and would be something that an appellate court could

review either way.” The State had no objection: “I have no objection

[to] that, obviously, statutory immunity would be something that

would be dispositive.” See Fla. R. App. P. 9.140(b)(2)(A)

(authorizing appeals of dispositive orders in conjunction with a

plea agreement).

The State requested, and defense counsel agreed, that if Hicks

were not successful on the appeal, he could not later withdraw his

plea. Counsel discussed with the trial judge the mechanism of

appellate review, with the judge stating that review would be

“appealed from final judgment.” The prosecutor agreed with the

procedure of appealing the stand-your-ground order post-plea, and

the lower tribunal approved that. As part of the plea colloquy, the

trial judge stated that judgment would be entered, “And so you

would then still preserve the right to appeal that immunity

decision I made against you on the stand your ground.” The judge

indicated counsel would be appointed for the appeal, “And then you

will still be able to pursue the appeal on the stand your ground. . . .

[I]f that’s successful, then that would vacate the judgment. If it’s

not successful, then the judgment and the plea agreement will

stand.”

Concluding the hearing, the judge again advised Hicks that

he could appeal the plea, judgment, and sentence, and that “You

also have preserved the right to appeal the Court’s prior ruling

denying your motion for immunity under the so-called stand your

ground law. . . . So you have 30 days in which to file a written

appeal. . . .” The judge discussed appointing counsel for the appeal.

12

The same day as the plea hearing, the lower court accepted and

signed the written plea of guilty and negotiated sentence, which

specified as among the negotiated terms, “[Defendant] reserves

right to appeal courts [sic] ruling on Stand Your Ground Hearing.”

Hicks filed a pro-se notice of appeal from jail on April 18, 2017,

stating that he appealed the court’s order rendered March 21, “a

final order of Judgment and Sentence because he [Hicks]

specifically reserved his Right [sic] to appeal the denial of his

motion to dismiss based upon stand your ground immunity.” The

day before Hicks’s pro-se notice of appeal was docketed, trial

counsel filed, and the court clerk docketed, a notice of appeal from

the “Order Denying Defendant’s Motion for Declaration of

Immunity and Dismissal.” Counsel filed a Statement of Judicial

Acts to be Reviewed, identifying “The trial court’s Order, dated

August 4, 2016, in which the trial court denied Defendant’s Motion

for Declaration of Immunity and Dismissal.” That order denied

Hicks’s Motion for Declaration of Immunity and Dismissal, “for the

reasons stated in open court on August 4, 2016.” As noted above,

the reasons the trial court stated for denying the motion to dismiss

included the burden of proof.

(2) Post-Disposition Developments. The 2017 amendment

shifting the burden of proof to the State in self-defense immunity

hearings took effect June 9, 2017—a year and a half after Hicks

filed his motion seeking immunity, ten months after the trial

court’s ruling denying immunity, three and a half months after the

parties’ stipulated plea, and two and a half months after the notice

of appeal was filed. Hicks argued in his brief that the 2017

amendment was procedural and thus retroactive, which is now

this Court’s position on that issue under Commander and its

progeny. Hicks specifically argued in his initial brief that the new

standard “will significantly impact the results of any hearing held

under the new standard.” He argued that his hearing was not the

kind envisioned under the new statute and the legislative intent

behind it, that the change in the burden of proof could alter the

outcome of the hearing, and that “[i]t cannot be considered certain

or even likely that the state could overcome” the new burden. He

argued in his reply brief that he and others similarly situated have

not received the “‘full and fair hearing’” contemplated by the new

13

law. At oral argument, the court noted that “the substantive right

here is the immunity,” with which Hicks’s counsel agreed.

The record clearly reflects that Hicks entered his plea in

reliance on the parties’ stipulation and the trial court’s ruling that

the immunity issue was dispositive. Hicks argued on appeal that

the substantive right of immunity was available to him through

the procedural vehicle created by the 2017 amendment.

Nevertheless, the majority applies a narrow view of Hicks’s

argument, as if he had raised only a purely academic issue about

whether the amendment was retroactive or not with no tie to his

own substantive rights. This narrow view is refuted by Hicks’s own

argument and by common sense. The new development in the law

gave Hicks a new procedural argument—entitlement to a new

immunity hearing under a more favorable burden and quantum of

proof—and as a result he has a very real opportunity to secure his

substantive right of immunity. See, e.g., Mayers v. State, 43 Fla. L.

Weekly D2800, 2018 WL 6598716, at *1 (Fla. 1st DCA Dec. 17,

2018 (remanding for discharge where the trial court rejected an

immunity claim under prior statute, but alternatively held that

“had the burden of proof been on the State, the State failed to meet

its burden to show that Petitioner was not entitled to immunity”).

The majority, however, would block Hicks’s procedural path on the

grounds that even a very real opportunity to secure the

substantive right of immunity is insufficiently definitive to have

been dispositive under rule 9.140(b)(2)(a).

I believe the majority’s reasoning is contrary to Florida

Supreme Court precedent on dispositivity, as I will explain below.

The majority also suggests (albeit in a footnote) that it would reach

the same result on the particularity requirement of rule

9.140(b)(2)(a). I therefore address both dispositivity and

particularity, while holding to my position that the majority’s

novel analysis should not have been raised and resolved sua sponte

absent supplemental briefing, at a minimum.

C. Dispositivity.

As part of their plea agreement, Hicks and the State

stipulated that the denial of immunity was dispositive for purposes

of appeal, and the trial court expressly agreed. The stipulation

brings this case within the scope of Churchill v. State, 219 So. 3d

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14 (Fla. 2017). In Churchill, the supreme court held that if the

State stipulates that an issue reserved for appeal is dispositive,

then a reviewing court is bound by the stipulation: “For the reasons

expressed above, we hold that, in appeals from conditional no

contest pleas, stipulations of dispositiveness are binding on the

appellate court.” Id. at 18. In so holding, the supreme court

expressly rejected the district court’s reasoning that dispositivity

was lacking where a scenario existed under which a new trial could

follow on remand. Id. at 15. Churchill, while not involving a SYG

immunity hearing, clearly instructs that the appellate court is not

authorized to go behind a stipulation of dispositivity and speculate

about what might transpire on remand. In other words,

dispositivity is to be determined in accordance with the stipulation

as and when made in the trial-court proceedings, not from the

perspective of the reviewing court and its potential disposition of

the appeal. See also Clayton v. State, 252 So. 3d 827 (Fla. 1st DCA

2017) (entertaining appeal from order denying motion to suppress

where state agreed it was dispositive); England v. State, 46 So. 3d

127, 129 (Fla. 2d DCA 2010) (holding that order denying motion to

suppress “is not dispositive unless the parties so stipulate”)

(quoting Wilson v. State, 885 So. 2d 959, 960 (Fla. 5th DCA 2004));

Jackson v. State, 382 So. 2d 749 (Fla. 1st DCA 1980) (holding

appellate court will treat appeal as involving a dispositive issue if

the State stipulates to it).

In the SYG context, viewed from the perspective of the

appellate court’s options, several outcomes are theoretically

possible, although not all are likely given the nature of the issues.

The appellate court could find the defendant entitled to immunity

as a matter of law, in which case the process ends. In the typical

prohibition proceeding brought after a SYG ruling and before trial

(not involving a plea), if the reviewing court finds the defendant

not entitled to immunity, a trial may occur on remand (although

as a practical matter it would seem the likelihood of a plea

increases under this scenario).

The analytical difficulty increases when the appellate issue is

the proper burden of proof. If this issue is raised via prohibition

between immunity hearing and trial, with no plea, and the

appellate court rules that the wrong burden was used below, the

trial court may simply review the evidence already adduced at the

15

earlier SYG hearing, applying the new burden and quantum of

proof. See Tynes, 262 So. 3d at 852 (noting trial court could apply

the new analysis to the evidence already adduced at hearing). In

other instances there can be a new SYG hearing—although again,

the possibility of a plea. If on new review or a new SYG hearing

the defendant prevails, the State can go no further. And, if the

defendant loses in the new hearing, the State can take it to trial

(with a higher likelihood of a plea). But when the issue is raised

immediately post-plea—or even on plenary appeal post-trial, see,

e.g., Boston and Aviles-Manfredy—the defendant is entitled to a

new weighing of evidence or a new SYG hearing under the correct

burden of proof.

Importantly, that limited pre-trial immunity hearing in and

of itself is not prosecution nor a trial on the merits, and therefore

cannot defeat dispositivity. This demonstrates that the majority

erroneously describes my dissent as presuming the State will

pursue its case—meaning prosecution, trial, judgment, and

sentence. To the contrary, in this context, the correct disposition

would first honor the bilateral, court-approved stipulation of

dispositivity, then remand solely for a new weighing of evidence or

a new immunity hearing applying the new burden of proof. If the

State loses and Hicks secures immunity, the case is over, and that

is dispositivity within Churchill.

As a practical matter in cases not involving the facts

presented here, the outcome of a new immunity hearing will either

end further prosecution below and thus be actually dispositive, or

allow a trial (or make a plea ever more likely). That academic

possibility of a trial following an order denying immunity after

remand leads the majority to find no dispositivity. Factually, that

reasoning does not apply here, with a plea and a stipulation of

dispositivity. Analytically, that reasoning applies the wrong

perspective—that of the appellate court’s potential remedies on

the immunity question, and resulting sequelae. To the contrary,

Churchill instructs us to test dispositivity from the perspective of

the stipulating parties. What theoretically could happen on

remand in a vacuum is not controlling under Churchill. See also

Foster v. State, 232 So. 3d 512, 514–15 (Fla. 2d DCA 2017) (holding

an issue is dispositive if the State cannot go to trial after losing the

16

motion). If the parties agreed it is dispositive, it is, for purposes of

invoking our review. Here, they did, and it is.

In addition, Churchill indicates that the State is bound by its

stipulation of dispositivity, and is thus precluded from continuing

to prosecute on remand: “When the State enters into a plea

agreement on the condition that the defendant will not face further

prosecution if he or she prevails on appeal, that agreement is

binding and cannot be defeated simply because it would be legally

possible to continue to trial regardless of the outcome in the

appellate court.” 219 So. 3d at 18. The trial court here advised

Hicks that he could not withdraw his plea if he did not win this

appeal, and that the judgment would be vacated if he did win this

appeal. The discussion did not extend to whether the State’s

stipulation, sufficient to confer jurisdiction under rule

9.140(b)(2)(A), would become an actual bar to further prosecution

if Hicks lost a new SYG hearing on remand. It appears it would be;

that is, that the best-case scenario for Hicks is exoneration and his

worst-case scenario is his plea. There is no indication the State

would proceed to trial, and to the contrary, the State reminded

Hicks that he could not withdraw his plea if he loses this appeal,

and then the State stipulated to dispositivity of the immunity

issue—all indicating no ability or intention of proceeding to trial.

Nor is there any indication that Hicks would have entered the plea

and stipulation if he had thought he could be subjected to a full

trial. He will hold the State to its stipulation. In the event of a

dispute, it would be for the lower tribunal in the first instance to

resolve issues about whether the stipulation actually foreclosed

further prosecution and whether Hicks’s plea was fully-informed

and voluntary in this and other respects. For present purposes,

Churchill and its progeny direct that we accept the parties’

stipulation as to dispositivity; the record strongly indicates that

both parties believe there will be no trial regardless; and what

could theoretically happen on remand is not controlling.

The majority cites two cases limiting dispositivity to

situations where there could not be a trial on remand: Williams v.

State, 134 So. 3d 975, 976 (Fla. 1st DCA 2012), and Morgan v.

State, 486 So. 2d 1356, 1357 (Fla. 1st DCA 1986). Williams

involved a competency determination, which the State did not

stipulate was dispositive and the trial court did not find was

17

dispositive. Morgan involved the exclusion of evidence in a driving-

while-intoxicated case, and the parties agreed that the State could

proceed to trial if the appellate court reversed the exclusion. Both

cases pre-date Churchill. Neither case involved self-defense

immunity; neither involved a bilateral, court-approved stipulation

of dispositivity like we have here; and both would appear to conflict

with Foster, 232 So. 3d at 514–15. Because of the unique nature of

immunity itself as only a potential bar to prosecution and trial, it

will always be necessary to hold some sort of proceeding to

determine whether immunity applies, and thus the majority’s

analysis would always make it impossible for litigants to establish

actual dispositivity in the literal and immediate sense. The

majority’s analysis is thus an unwarranted procedural restriction

of the substantive right of immunity.

In adopting this new precedent that has the legal effect of

precluding appeals following pleas in SYG cases, the majority

misplaces its reliance on the broad jurisprudential goal of avoiding

piecemeal appeals. As discussed above, Churchill itself, which the

majority cites for this proposition, would allow immediate review

following a plea that expressly states the issue is dispositive. By

refusing to follow Churchill and accept a court-approved

stipulation of dispositivity, the majority would actually generate

more piecemeal proceedings by forcing litigants to move to

withdraw their pleas and proceed with ineffective assistance of

counsel claims, which then generate even more appeals.

Further, immunity from suit is an appropriate subject for

interlocutory appeals, as evidenced by the existing appellate rule

allowing such appeals. Fla. R. App. P. 9.130(a)(3)(C)(v), (vii), (x),

(xi) (workers compensation immunity, immunity in civil rights

actions under federal law, immunity from being named as a

defendant in a suit pursuant to section 768.28(9), Florida Statutes,

and sovereign immunity). The absence of a specific rule allowing

appeals from orders denying SYG immunity—which is an

immunity from prosecution and trial, and not merely immunity

from punishment or damages—most likely reflects only the

recency of evolutions in SYG law. The Appellate Rules Committee

should address this gap. See generally Florida Highway Patrol v.

Jackson, 238 So. 3d 430, 431-33 (Fla. 1st DCA 2018) (reviewing

evolution of rules allowing interlocutory appeal of non-final orders

18

denying immunity). Immediate review in a case involving

immunity from prosecution is within the same analytical grouping

as those immunities for which immediate appeal is already

authorized, and we in addition to other courts have accepted such

appeals in multiple cases already. We should do the same here.

D. Particularity.

Although not expressly basing its disposition on the

particularity issue, the majority heavily discusses the issue in a

footnote. Their point is that because Hicks did not object to bearing

the burden of proof at his SYG hearing, and did not specify in his

plea agreement that he intended to appeal the burden of proof, he

cannot satisfy the particularity requirement of rule 9.140(b)(2)(A)

(allowing defendant to “expressly reserve the right to appeal a

prior dispositive order of the lower tribunal, identifying with

particularity the point of law being reserved”). I believe the

majority would be mistaken in that reasoning in two respects: first,

by requiring litigants to “reserve” a narrow point of law that does

not exist at the time; and second, by interpreting the rule too

narrowly to the prejudice of a litigant who did all that the law

required of him.

(1) A Precognition Requirement? The timeline shows

clearly that the legislative change in the SYG burden of proof

occurred months after Hicks and the State stipulated that he could

appeal the trial court’s denial of immunity, as well as months after

the notice of appeal was filed. It was completely impossible for

Hicks to know at the immunity hearing or plea stage that the

Legislature would make the change that it later made. It was

completely impossible for him to meet the burden the majority

would now place on him. This theory cannot validly be asserted as

a basis to rule against Hicks on appeal. Cf. Brooks v. State, 175 So.

3d 204, 235 n.9 (Fla. 2015) (rejecting argument that counsel was

ineffective for failing to raise a due-process defense based on a case

not issued until two years after trial, and noting that “This Court

has made clear that counsel cannot be held ineffective for failing

to anticipate changes in the law”) (citing Taylor v. State, 62 So. 3d

1101, 1111 (Fla. 2011)); Nelms v. State, 596 So. 2d 441, 442 (Fla.

1992) (holding failure to raise change of law occurring more than

three years after defendant’s sentence was affirmed could not

19

constitute ineffective assistance of counsel: “Defense counsel

cannot be held ineffective for failing to anticipate the change in the

law.”).

Although research has not revealed a Florida case precisely

on point, other jurisdictions have recognized the impossible

position it would create to require litigants to foresee the future

enactment of a retroactive statute. Thompson v. State, 985 A.2d

32, 42 (Md. 2009) (“[T]o say that Thompson cannot receive the

benefit of the remedial provisions of CP Section 8–201 simply

because he failed to foresee the enactment of this legislation in

characterizing his motion, would be contrary to the retroactivity

analysis we just made.”); Beatty v. State, 627 So. 2d 355, 358 (Miss.

1993) (“The application of Section 27–27–12 and the resultant

amendment to Section 97–33–7 is not a charitable raising of an

issue not raised but is a necessary application of existing law to

which the appellant is entitled. We simply cannot apply the law as

it was and is not anymore.”); cf. Pace v. Jordan, 999 S.W.2d 615,

620 (Tex. Ct. App. 1999) (refusing to apply a statutory amendment

because the amendment occurred while the case was pending in

the trial court and no argument regarding the amendment was

preserved). As a matter of practicality and fairness—due process—

Hicks cannot be refused relief because he could not foresee the

future legislative change and state in his plea that he would raise

that, specifically, on appeal.

(2) The Benefit of any Doubt. The practical impossibility of

foreseeing the 2017 legislative change and specifying it as a basis

of appeal after plea would defeat any attempt to rule that Hicks

failed to satisfy the particularity requirement of rule

9.140(b)(2)(A). Case law interprets the particularity requirement

more broadly and more favorably to litigants. In England, the

defendant filed a motion to suppress physical evidence, and also

moved to suppress his confession. He entered a plea, reserving the

right to appeal at least one motion to suppress, but it was not clear

which one. The parties appeared to agree that at least one motion

was dispositive, and the court appeared to agree, but again, it was

not clear which one. 46 So. 3d at 129.

On appeal, the Second District rejected on the merits the

appellant’s arguments directed to suppression of the physical

20

evidence. With respect to the motion to suppress the confession,

the appellate court described the circumstances as “murky,” and

noted that the case exemplified the need for clarity and specificity.

Id. at 129 & n.2. Nevertheless, the court followed its own precedent

of giving the appellant the benefit of any doubt: “In these types of

cases, we have given appellants the benefit of any uncertainty as

to the appealability of orders denying motions to suppress and we

have proceeded to discuss the merits of these cases.” Id. at 129

(citing additional cases); see also Edwards, 257 So. 3d at 587

(reaching SYG merits issues under broadly-worded reservation of

right to appeal the stand your ground ruling). The language used

in Hicks’s reservation of rights and stipulation as to dispositivity

was typical of that used in other cases, and better than some. It

was sufficient.

III. Conclusion.

The facts presented make an exceptionally strong case for

dispositivity due to the plea and its incorporated bilateral, court-

approved stipulation of dispositivity. The immunity question

uniquely requires a non-prosecutorial evidentiary analysis to give

life to the substantive right of immunity at stake. As a matter of

law, an immunity hearing is not itself a trial or prosecution. This

evidentiary proceeding does not in and of itself defeat dispositivity,

even if such analysis were permissible on the facts of this case,

where the parties contemplated an end to prosecution regardless

of the outcome of this appeal.

Consistent with Commander, we should reverse Appellant’s

judgment and sentence, and remand for a new stand-your-ground

immunity hearing at which the State has the burden of proof under

section 776.032(4). See Commander, 246 So. 3d at 1303-04. We

should certify conflict with the decisions of other courts finding the

2017 statutory change prospective. See Love, 247 So. 3d at 609;

Hight v. State, 253 So. 3d 1137 (Fla. 4th DCA 2018). We should not

override a stipulated, judge-approved reservation of right to

appeal an issue designated as dispositive, and then change

existing SYG law--especially not without first affording the parties

the courtesy of being heard in supplemental briefing. Therefore, I

respectfully dissent.

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_____________________________

Andy Thomas, Public Defender, and Greg Caracci, Assistant

Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Robert Quentin Humphrey

and Kaitlin Weiss, Assistant Attorneys General, Tallahassee, for

Appellee.

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