Florida’s Stand Your Ground Burden of Proof on the Prosecution ruled constitutional.

When the Florida Legislature in one of its last recorded Pro-Gun & Pro-Self-Defense acts changed the Statutes so the burden of proof of those seeking Stand Your Ground was shifted to the prosecution, which was a correction added to clarify a gaping legal hole left from the original statute.

In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).

I know (or I think) I covered that a Miami judge ruled against it because only the Florida Supreme Court can enact procedural provisions in which was then a celebrated triumph for the Opposition. Unfortunately for the judge and Gun Control fascist, the ruling on that sense was deemed invalid by Florida’s Third District Court of Appeal.

Article V, section 2(a) gives the Florida Supreme Court the authority to adopt rules of practice and procedure. However, the Legislature has the constitutional authority to enact procedural provisions in statutes that are intertwined with substantive rights.

The Third Court goes on to say that this is a well established and accepted practice and then goes on to the specifics for Stand Your Ground:

The amendment shifts the burden of proof to the prosecution after the defendant has made a prima facie claim of justified use of force, and it requires that the State meet this burden of proof with clear and convincing evidence. § 776.032(4), Fla. Stat. (2017). This is consistent with the well-established legislative practice of passing statutes allocating the burden of proof in judicial proceedings. In addition, section 776.032(4) does not conflict with any rule of procedure promulgated by the Florida Supreme Court because no such rule was added to the Florida Rules of Criminal procedure regarding section 776.032 before subsection (4), nor was there a rule of procedure set forth by the Legislature before January 2017.2 The Legislature, thus, had the constitutional authority to enact the burden of proof provision of section 776.032(4) in order to give effect to the substantive right to immunity in the Stand Your Ground statute.3

About the only “challenge” I see the Florida Executive trying to forward in an appeal (IANAL Warning applies) is that they try to make the case that Stand Your Ground is not a substantive right, thus the Third Court of Appeals ruling needs to be vacated.  I my inexperienced legal opinion, this would be not only stupid as it would legally diminish the worth of Self Defense in Florida so it would probably be tossed out and Pam Bondy sent to the corner wearing the dunce hat in punishment, but it would political suicide for a Florida GOP already severely wounded for the lack pro-gun bills passed by the Legislature and the outright treason of SB 7026.

So what did the Third Court of Appeals did not approve? That the application of the amendment to the law was retroactive. The particular case argued in front of the court involved Ms. Tashara  Love:

The decision came in a case in which Tashara Love sought to use the “stand your ground” law to be shielded from prosecution after a November 2015 altercation outside a Miami-Dade County nightclub. Love shot a man as he was about to hit her daughter, according to the decision.

But the appeals court Friday ruled against Love on a key issue —- and created a conflict with a May 4 decision by the 2nd District Court of Appeal in a Hillsborough County case.

The issue centers on whether the 2017 shift in the burden of proof should be applied to cases that occurred before the change took effect, an issue known as applying the change retroactively.

The 3rd District Court of Appeal turned down Love’s argument that she should be able to use the 2017 change in a “stand your ground” hearing. Such a hearing had not been held in her case at the time the Legislature approved the change, but the appeals court focused on the law that was in effect at the time of the November 2015 shooting.

South Florida court upholds constitutionality of revised ‘stand your ground’ law 

There was another case taken to the Second Court of Appeals which ruled the opposite and that will probably take this specific section of “our” case to the Florida Supreme Court. There might be another renegade judge who, in a new case,  may want to be activist and declare the shift of burden of proof unconstitutional, but there is already a precedent for smacking it down and hard.

So, rejoice! This is great news for all of us. Who knows? Maybe as with Shall Issue thirty years ago,  we are witness to the beginning of a new defensive rights’ chapter that will sweep the nation’s legal system.

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