Edward Lamont Hicks v. State of Florida

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-1830

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EDWARD LAMONT HICKS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Duval County.

Waddell A. Wallace, Judge.

August 23, 2019

ORDER ON MOTION FOR REHEARING EN BANC

A judge of this Court requested that this cause be reheard en

banc in accordance with Florida Rule of Appellate Procedure

9.331(d). All judges in regular active service have voted on the

request. Less than a majority of those judges voted in favor of

rehearing en banc. Accordingly, the request for rehearing en banc

is denied.

RAY, C.J., and WOLF, LEWIS, B.L. THOMAS, ROBERTS, ROWE,

OSTERHAUS, WINOKUR, and JAY, JJ., concur.

WINOKUR, J., concurs in an opinion in which WOLF, LEWIS, B.L.

THOMAS, ROBERTS, and ROWE, JJ., join.

MAKAR, BILBREY, KELSEY, and M.K. THOMAS, JJ., dissent.

MAKAR, J., dissents in an opinion in which KELSEY, J. joins.

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WINOKUR, J., concurring in denial of rehearing en banc.

I agree that Hicks has failed to show that en banc

consideration is appropriate. While I do not wish to belabor points

made in the panel majority opinion, I find that some points raised

in the consideration for en banc rehearing merit further

explication. I agree with the panel majority that Hicks has

improperly appealed a nondispositive issue, but the concept of

dispositiveness deserves further comment. The same is true for the

proposition that the State’s stipulation in this case permits review.

More fundamentally, even if this case presented no issue with

dispositiveness or reservation, Hicks would still be entitled to no

relief because he has misinterpreted the retroactivity of section

776.032(4), Florida Statutes (2017).

1. Dispositiveness

The scope of the right to appeal a judgment or sentence

following a guilty or no-contest plea is clear: such an appeal is

prohibited “without expressly reserving the right to appeal a

legally dispositive issue.” § 924.051(4), Fla. Stat. The applicable

procedural rule sets forth the same requirements. Fla. R. App. P.

9.140(b)(2)(A)(i) (adding that a defendant who wishes to appeal

following a guilty or no-contest plea must “identify[] with

particularity the point of law being reserved”). 1 The requirement

that an issue appealed following a guilty plea be dispositive is no

mere procedural hurdle placed before defendants to limit review.

Instead, it is necessary to effectuate the overriding rule that a

guilty plea ends proceedings in the trial court. The dispositiveness

requirement ensures that, regardless of whether the defendant

wins or loses on appeal, the proceedings in the trial court ended

with the plea and resulting judgment.

1 While section 924.051(4) provides this sole method for an

appeal following a guilty or no-contest plea, Rule 9.140(b)(2)(A)(ii)

permits other types of appeals following guilty or no-contest pleas

that are not relevant here.

2

The dispositiveness requirement has long been imposed to

prevent “a trial even if [the defendant] prevails on appeal.” Brown

v. State, 376 So. 2d 382, 384 (Fla. 1979). The requirement is meant

to “expedite[] resolution of the controversy,” by prohibiting what

would amount to an “interlocutory appeal.” Id. See also Tiller v.

State, 330 So. 2d 792, 793 (Fla. 1st DCA 1976) (holding that,

without a dispositiveness requirement, “appellate courts will be

placed in the untenable position of rendering advisory opinions

and the disposition of criminal cases will be unacceptably

delayed”). Thus, the central importance of the dispositiveness

requirement is that it precludes any further proceedings following

appeal. This rule makes sense, since the defendant has already

entered a guilty or no-contest plea. Further proceedings in the trial

court would be inconsistent with the finality inherent in such a

plea. See Milliron v. State, 44 Fla. L. Weekly D1475 (Fla. 1st DCA

June 7, 2019) (finding the issue nondispositive because, even if

relief were granted on some counts, “there will still be a ‘trial of

the case’ or further proceedings for the remaining counts”); Sloss

v. State, 917 So. 2d 941, 942 (Fla. 5th DCA 2005) (“These motions

. . . are in no way dispositive as a reversal would merely result in

remand for further proceedings, including the possibility of a

trial.”); Martinez v. State, 420 So. 2d 637, 638 n.2 (Fla. 3d DCA

1982) (“The test for dispositiveness . . . is whether our decision in

favor of either party would end the case.”).

This intent to prevent further trial-court proceedings is so

strong that even an issue that is not in fact dispositive of the case

may be appealed, as long as the State stipulates that no further

proceedings will follow an appeal. See Churchill v. State, 219 So.

3d 14, 18 (Fla. 2017) (noting that “the appellate court’s ruling on

the issue reserved for review, even one that is not legally

dispositive as contemplated by Brown, will bring an end to the

litigation”) (emphasis added). Again, the central value of this rule

is that an appeal “will bring an end to the litigation.” Id. This is

true regardless of whether the appealed issue can be properly

characterized as “dispositive,” because the State can stipulate to

the appeal of a nondispositive issue. Put another way, the State

can waive the requirement that an appealed issue be dispositive,

but if it does, the appeal still must end the litigation.

3

It should be noted that Churchill did not break new ground in

its ruling that the appellate court must accept a reserved issue as

dispositive if the State has stipulated to dispositiveness. This rule

of law has been applied in this Court for nearly forty years. In

Jackson v. State, 382 So. 2d 749 (Fla. 1st DCA 1980), aff’d, 392 So.

2d 1324 (Fla. 1981), the State argued that the appellate court could

not review a suppression issue because it was not dispositive. This

Court rejected the argument because, by stipulating to the

dispositiveness of the reserved issue below, it essentially waived

any argument on appeal that the issue was not dispositive.

Jackson, 382 So. 2d at 750. See also Zeigler v. State, 471 So. 2d 172,

176 (Fla. 1st DCA 1985) (accepting a stipulation of dispositiveness

because it demonstrated that “each [party] is willing to abide by

the appellate consequences” of the stipulated issue (quoting Finney

v. State, 420 So. 2d 639, 642 (Fla. 3d DCA 1982)). While Churchill

did reverse a contrary ruling from another district, it is a mistake

to suggest that it establishes a rule of law in this district that did

not already exist for decades. 2

2 The dissent to this order contends that there had been “[t]wo

lines of inconsistent cases” in this Court on the issue of whether an

appellate court could reject a stipulation of dispositiveness, and

that Churchill resolved this inconsistency. Dissenting op. at 12

(citing Beermunder v. State, 191 So. 3d 1000, 1001 (Fla. 1st DCA

2016) (Makar, J. concurring)). I disagree. Since the 1980s the

consistent law in this district has been that an issue is legally

dispositive (and therefore appealable following a guilty plea) if the

State stipulates below that the issue is dispositive, and that the

appellate court cannot reject the appeal if it finds that the issue

was not actually dispositive. The only case cited in Beermunder for

the opposite rule was Morgan v. State, 486 So. 2d 1356 (Fla. 1st

DCA 1986). While it is true that the Morgan court rejected a State

stipulation of disposiviteness, it did so because “an essential part

of the stipulation was that, in the event that such rulings were

reversed on appeal, the state would be entitled to proceed to trial.”

Id. at 1357. In other words, the parties actually stipulated only to

appealability, but not to dispositiveness, because they agreed to

further proceedings if the defendant prevailed on appeal.

Essentially, the parties did not know what “dispositive” meant.

This Court rejected the stipulation, because no post-appeal trial

proceedings are permitted following a guilty plea. Id. at 1358. In

4

In contrast, Hicks argues that we should allow further

proceedings following this appeal. At the least, Hicks argues that

he is entitled to a new immunity hearing. He contends that an

actual trial is “unlikely,” so it meets the dispositiveness

requirement. I do not agree. An appeal of a reserved issue following

a guilty plea cannot constitute an “interlocutory appeal,” Brown,

376 So. 2d at 384, and must “bring an end to the litigation,”

Churchill, 219 So. 3d at 18. In other words, following such an

appeal, either the conviction must be affirmed, or the defendant is

discharged. Any other resolution ignores the unmistakable

meaning of the word “dispositive.” 3 The issue of whether the trial

court erred in finding that Hicks was not entitled to immunity is

plainly dispositive: if he was entitled to immunity, the prosecution

is over. In this respect, the State’s “stipulation” was unnecessary:

the issue was dispositive whether the State stipulated to that fact

this unusual context, Morgan is not inconsistent at all with

Jackson or Zeigler. I stand by my contention that Churchill merely

confirmed a rule that has been consistently applied in this district

for nearly forty years.

3 The panel dissent concludes that Churchill permits further

proceedings on remand following appeal from a guilty plea, if the

State had stipulated to dispositiveness. Hicks v. State, 44 Fla. L.

Weekly D1525a, D1529 (Fla. 1st DCA June 12, 2019) (Kelsey, J.

dissenting) (“Churchill . . . clearly instructs that the appellate

court is not authorized to go behind a stipulation of dispositivity

and speculate about what might transpire on remand.”). I submit

this passage misreads Churchill. The Churchill court was merely

pointing out that the nondispositiveness of a reserved issue does

not prevent appellate review if the State has stipulated to

dispositiveness. That observation does not mean that an appeal of

a reserved issue following a guilty plea can result in remand for

further proceedings. Because the State stipulated to

dispositiveness, the appellate court must discharge the defendant

if the defendant prevails on appeal. Any other result ignores the

clear holding of Churchill, which states “the appellate court’s

ruling on the issue reserved for review, even one that is not legally

dispositive . . ., will bring an end to the litigation.” Churchill, 219

So. 3d at 18 (emphasis supplied).

5

or not. Conversely, the question of whether the State or the

defendant bears the burden of proof at the immunity hearing

plainly does not dispose of the case. 4,5

2. Express reservation

Again, I do not intend to rehash the majority opinion, in

particular here the conclusion that Hicks did not expressly reserve

the issue he raised on appeal. Suffice it to say that Hicks reserved

the substantive issue of his entitlement to immunity, which the

trial court denied. In his written plea agreement, he reserved the

“right to appeal [the] court[’]s ruling on Stand Your Ground

Hearing” (emphasis supplied). In no way did he even hint that the

procedural issue of the applicable burden of proof for his immunity

proceeding (on which the court made no “ruling”) was the issue he

planned to appeal.

I do not accept the contention that Hicks’ reservation of his

right to appeal the court’s ruling denying immunity somehow

encompasses the issue of the proper burden of proof at the

4 This is not an instance where the trial court stated explicitly

that the burden of proof question was dispositive. Cf. Mayers v.

State, 43 Fla. L. Weekly D2800 (Fla. 1st DCA Dec. 17, 2018) (“The

trial court held that a defendant had the burden to prove immunity

. . . and as such denied immunity to Petitioner. The trial court also

held in the alternative 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.”).

5 When a court finds an issue appealed following a guilty plea

nondispositive, the voluntariness of the plea may come into

question. See Milliron v. State, 44 Fla. L. Weekly D1475, D1476

(Fla. 1st DCA June 7, 2019) (Winokur, J., concurring). Here, there

is no doubt that Hicks did not rely on his ability to appeal the

burden-of-proof issue when he entered his plea, because the

burden-of-proof statute on which he sought relief on appeal did not

exist at the time of the plea. There is no basis to conclude that the

failure of this appeal would in any way render Hicks’ plea

involuntary.

6

immunity hearing. In this respect, the concept of issue

preservation is helpful in determining whether an issue has been

expressly reserved. An issue is not preserved for appellate review

unless it is “the specific contention asserted as legal ground for the

objection, exception, or motion below.” Steinhorst v. State, 412 So.

2d 332, 338 (Fla. 1982). Applying this rule, an appellant has not

preserved the issue of the proper burden of proof at a pretrial

hearing when the appellant raised no objection to burden of proof

below, but instead argued below that the order following the

pretrial hearing was erroneous. This argument is not the “specific

contention” asserted below. I believe this preservation analysis is

appropriate to determine the scope of a reserved issue in the

context presented here. 6

The response to this contention seems to be that Hicks could

not have foreseen the burden-of-proof issue, as the statute

modifying it was enacted long after the immunity hearing. Because

the burden of proof amendment is retroactive, Hicks argues he

should be entitled to claim it as “expressly reserved” within the

argument that the immunity finding was erroneous. I disagree, in

part because I believe this formulation misconstrues the

retroactivity of the burden-of-proof statute.

3. Retroactivity – two separate types

I conclude that the “retroactivity” of the burden-of-proof

statute does not mean that it applies to a defendant in Hicks’

position. An analysis of the different types of retroactivity explains

why.

A. New rules of law that establish a

fundamental constitutional right

6 To be clear, I do not suggest that Hicks is entitled to no relief

because he failed to preserve the burden-of-proof issue. He is

entitled to no relief because (among other reasons) he did not

reserve the burden-of-proof issue in accordance with section

924.051(4) and Rule 9.140(b)(2)(A)(i). I merely suggest that

preservation analysis helps to demonstrate that the issue is not

reserved.

7

There are two different ways that a newly-adopted legal

requirement is retroactive. The first is that the new rule of law

establishes a fundamental constitutional right that has been held

to apply retroactively. See, e.g., Witt v. State, 387 So. 2d 922, 925

(Fla. 1980). Any defendant is entitled to assert such a right, even

if his conviction is final on direct appeal. Id. Even if the two-year

limit for a motion for postconviction relief has passed, a defendant

may receive the benefit of a case or law that impacts a fundamental

constitutional right and is retroactive. See Fla. R. Crim. P.

3.850(b)(2) (providing that a defendant can seek postconviction

relief more than two years from the date the conviction is final if

“the fundamental constitutional right asserted was not established

within the period provided for herein and has been held to apply

retroactively”). An example of this type of retroactivity was the

holding of Graham v. Florida, 560 U.S. 48 (2010). See, e.g., Geter

v. State, 115 So. 3d 375, 384 (Fla. 3d DCA 2012) (stating that

Graham v. Florida applies retroactively in part because it

“categorically barred a type of sentencing after conviction for a

particular type of crime”), decision quashed on other grounds, 177

So. 3d 1266 (Fla. 2015). Defendants whose sentences were

impacted by Graham were entitled to relief, no matter how long

their convictions had been final. Id.

B. The substantive/procedural distinction

The second type of retroactivity concerns the distinction

between a substantive and a procedural amendment. If a new rule

of law is substantive, it is not retroactive, and a party is not

entitled to the benefit of the new rule unless it preceded the crime

or cause of action. See, e.g., Smiley v. State, 966 So. 2d 330 (Fla.

2007). For example, suppose a person commits a crime on Day 1

and the crime requires the use of any weapon. On Day 10, the law

changes so that crime now requires use of a firearm. The person’s

trial occurs on Day 20. In this case, the person is not entitled to the

benefit of the new law and can be convicted even if he used a

weapon in the crime that was not a firearm. The reason for this

result is that the change in the law was substantive: the law at the

time the crime was committed controls. See id. at 337 (holding that

substantive change in self-defense law cannot apply to conduct

occurring prior to the effective date of the amendment).

8

Suppose, on the other hand, that the new law (enacted on Day

10) changed the burden of proof for a pretrial proceeding. The

pretrial proceeding is scheduled for Day 20. Because the new law

is a procedural amendment, 7 the person is entitled to the new

burden of proof at the pretrial proceeding. It is “retroactive” to the

extent that the new law applies, even if it was not enacted until

after the person committed the crime. See, e.g., Grice v. State, 967

So. 2d 957 (Fla. 1st DCA 2007) (holding that law governing the

order of closing arguments was procedural and applied at trial

even if the crime was committed before the effective date of the

law).

But importantly, a person who has already been convicted

following a Stand Your Ground Immunity hearing at the time the

amendment is enacted is not entitled to reversal of the conviction

on appeal. “Retroactivity” because a change is procedural only

means that a defendant is entitled to the new procedure even if the

amendment was enacted after the crime occurred, which is not

true for substantive amendments. If the immunity hearing has

already occurred, then there is no reason to reverse the conviction

in order to provide the benefit of a new procedure. 8 To suggest

7 In making this argument, I am presuming that the burden-

of-proof change enacted in section 776.032(4) is procedural,

because that is what this Court ruled in Commander v. State, 246

So. 3d 1303 (Fla. 1st DCA 2018). I am aware that the Florida

Supreme Court is currently considering whether the amendment

should be applied retroactively, as district courts have split on the

question whether the amendment is procedural or substantive.

Love v. State, No. SC18-747, 2018 WL 3147946 (Fla. June 26,

2018). I express no opinion on this question. However, as stated

later in this opinion, my view is entirely consistent with the

Commander conclusion that burden of proof is procedural.

8 See Shenfeld v. State, 44 So. 3d 96, 101 (Fla. 2010) (holding

that a procedural amendment concerning tolling of probation

applied because it was enacted before the defendant’s probation

expired); Kenz v. Miami-Dade Cty., 116 So. 3d 461, 463 (Fla. 3d

DCA 2013) (holding that a new statute concerning burden of

proof—enacted after the cause of action, but before trial—was

procedural, retroactive, and applied to the case); Thomas v. State,

9

otherwise confuses “fundamental constitutional right”

retroactivity with “procedural amendment” retroactivity. 9

Applying one type to the other situation misconstrues retroactivity

analysis.

Under the analysis of retroactivity set forth above, Hicks is

entitled to no relief. The amendment to section 776.032(4) was not

enacted until long after Hicks’ immunity hearing. He was no

longer entitled to an immunity hearing, so he could not seek the

benefit of a procedural rule that applies to such an immunity

hearing.

For this reason, it is not unfair to impose the dispositiveness

and express reservation requirements to deny Hicks the benefit of

a retroactive statute because he would not have been entitled to

the benefit of the new statute even if he had gone to trial. Once a

defendant’s right to a pretrial immunity hearing was gone (i.e.,

once the defendant has actually been convicted), such a defendant

would not have been entitled to a new procedure for that pretrial

hearing. 10

662 So. 2d 1334, 1336 (Fla. 1st DCA 1995) (holding that a new

procedural sentencing law was properly applied at a sentencing

hearing that occurred just following the law’s enactment). The

procedural laws in these cases applied retroactively because the

events the laws applied to—expiration of probation, trial, and

sentencing—had not yet occurred.

9It is for this reason that I believe Martin v. State, 43 Fla. L.

Weekly D1016 (Fla. 2d DCA May 4, 2018), was wrongly decided.

10 Judge Roberts provides a separate but related reason why

a defendant who has already been convicted at trial has no right

to a new immunity hearing applying the new burden of proof if the

conviction occurred prior to the new burden-of-proof statute.

Mency v. State, 44 Fla. L. Weekly D1537 (Fla. 1st DCA June 12,

2019) (Roberts, J., concurring). Judge Roberts notes that a

defendant convicted at trial had his self-defense immunity claim

“fully and properly litigated” at trial, so a new immunity hearing

is unnecessary and inappropriate, regardless of the burden of proof

used at the immunity hearing. Id. at 1538. I agree.

10

In closing, I note that this position is consistent with

Commander v. State, 246 So. 3d 1303 (Fla. 1st DCA 2018). In

Commander, the amendment to section 776.032(4) became

effective after Commander committed the alleged crime, but before

his Stand Your Ground immunity hearing. Presuming the

amendment is procedural, Commander was entitled to the new

burden of proof for the immunity hearing, even though the law

change occurred after he committed the alleged crime. This is

simply not true for a defendant like Hicks, who had an immunity

hearing and was convicted long before the statute was amended.

For these reasons, I agree with the decision to affirm Hicks’

judgment and see no reason for this Court to consider the issue en

banc.

MAKAR, J., dissenting from the denial of rehearing en banc.

In its recent unanimous decision in Churchill v. State, 219 So.

3d 14 (Fla. 2017), our supreme court established a bright-line test:

an issue is dispositive for jurisdictional purposes in the district

courts in a conditional plea case if “the State stipulates that an

issue reserved for appeal is dispositive of the case.” Id. at 17 (citing

Fla. R. App. P. 9.140(b)(2)(A)(i), which says a defendant in such a

case “may expressly reserve the right to appeal a prior dispositive

order of the lower tribunal”). “In such circumstances, there is no

need for the trial court nor the appellate court to determine

whether a particular issue will end the case because the

stipulation of dispositiveness establishes that the State cannot or

will not continue with its prosecution if the defendant prevails on

appeal.” Churchill, 219 So. 3d at 17 (emphasis added).

The supreme court cleared the jurisprudential fog that had

enveloped this Court for over thirty years by adopting the bright-

line test and rejecting the alternative view that an appellate panel

can second-guess a stipulation and decide on its own what’s legally

dispositive for jurisdictional purposes. See generally Beermunder

v. State, 191 So. 3d 1000, 1001 (Fla. 1st DCA 2016) (analyzing the

“[t]wo lines of inconsistent cases [that] have been cohabitating in

our Court's jurisprudence since the mid–1980s, making the

[jurisdictional] answer murky.”) (Makar, J., concurring).

11

In this case, the State at the plea hearing affirmatively

stipulated to dispositiveness, telling the trial judge unequivocally

that the statutory immunity issue “obviously . . . would be

dispositive.” That ends the jurisdictional inquiry under Churchill’s

bright-line test, such that the stipulation and plea agreement

become “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. Nonetheless, the panel

majority in this case in effect stiff-arms Churchill’s holding,

despite it lacking authority to parse or second-guess the clearly

stated stipulation in these circumstances. This is not a case where

the parties stipulate to a Fourth Amendment issue as dispositive

and the defendant raises only an unrelated Eighth Amendment

issues on appeal; it presents solely a run-of-the-mill Stand-Your-

Ground immunity issue.

Because the panel majority has muddied the recently

repristinated jurisdictional waters established by Churchill, we

ought to have corrected its error via en banc review rather than

leave it to the supreme court to do so via its conflict jurisdiction.

Art. V, § 3(b)(3), Fla. Const. (providing for discretionary review

where a decision of a district court of appeal “expressly and directly

conflicts with a decision . . . of the supreme court on the same

question of law.”).

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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,

Assistant Attorney General, Tallahassee, for Appellee.

12