Florida Third District Court of Appeal – Criminal Headnotes – September 26, 2018
S.B. V. STATE OF FLORIDA – IMPROPER BURDEN SHIFTING; EXCULPATORY EVIDENCE
Direct appeal of a juvenile defendant from a finding of delinquency for strong arm robbery. On appeal, the defendant argues that the state improperly shifted the burden of proof by asking him on cross-examination if he had brought any witnesses to support his alibi. The trial court overruled defense counsel’s objection to this line of questioning and did not indicate that it would disregard the testimony in making its decision.
Citing Warmington v. State, 149 So. 3d 648 (Fla. 2014), the appeals court agreed the prosecutor’s line of questioning improperly suggested that there was a burden on the defendant to produce exculpatory evidence, and although this was a bench trial, the court determined this error was not harmless.
Reversed and remanded for a new adjudicatory hearing.
RENE C. TOIRAN V. STATE OF FLORIDA – “STAND YOUR GROUND”; AMENDMENT SHIFTING BURDEN TO STATE NOT RETROACTIVE
Petition for writ of prohibition to prevent a prosecution for second-degree murder on the ground the defendant is immune from prosecution under section 776.032 of the Florida statutes, the “stand your ground” statute.
The incident in question occurred prior to the 2017 amendment to that statute, shifting the burden of proof from the defendant, to establish the defense by a preponderance of evidence, to the state, to refute a prima facie defense by “clear and convincing” evidence. The preliminary hearing took place after the statute was amended.
A motions judge had ruled the amendment to the statute did not apply retroactively to alleged crimes committed prior to enactment, and in light of that ruling the trial court made alternative findings: first, that the defendant had not established by a preponderance of evidence that he was entitled to immunity; but second, if the amendment did apply retroactively, that the state had not carried its burden to refute the defense by “clear and convincing” evidence.
At the time, the appeals court had not yet issued its decision in Love v. State, 247 So. 3d 609 (Fla. 3d DCA 2018), that the amendment does not apply retroactively.