Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-5207 _____________________________ ASSAN DEANDRE ROGERS, Petitioner, v. STATE OF FLORIDA, Respondent. _____________________________ Petition for Writ of Certiorari—Original Jurisdiction. January 27, 2020 ROWE, J. Assan Deandre Rogers petitions this Court for a writ of certiorari to quash the trial court’s ruling on his motion for Stand Your Ground immunity. Rogers argues that the trial court departed from the essential requirements of law by requiring him to present evidence in support of his immunity claim. Because Rogers agreed to the procedure employed by the trial court, he is not entitled to certiorari relief. The State charged Rogers with aggravated battery causing great bodily harm by possessing and discharging a firearm. Rogers moved to dismiss the charge, asserting immunity from prosecution under the Stand Your Ground law, section 776.012, Florida Statutes (2018). At the hearing on the motion, the trial court asked Rogers’ counsel, “You got to put on your testimony to flip it right?” Counsel responded, “Yes, sir” and then presented testimony in support of Rogers’ immunity claim. Rogers and his fiancé both testified. After hearing the evidence presented by Rogers, the trial court ruled that Rogers had not met “the evidentiary standard to flip the burden to the State.” The court denied the immunity motion. Rogers now seeks certiorari review of the procedure employed by the trial court. He argues that the trial court departed from the essential requirements of law, causing him material injury, when the court suggested that he needed to present evidence in support of his prima facie claim of immunity. Our analysis begins with the plain language of the statute. Under section 776.032, Florida Statutes (2018), ∗ a party asserting Stand Your Ground immunity must raise a prima facie claim of self-defense. Once a prima facie claim has been raised, the party seeking to overcome the immunity bears the burden of disproving the self-defense claim by clear and convincing evidence. Hicks v. State, 277 So. 3d 153, 154 (Fla. 1st DCA 2019). Rogers argues that the trial court erred when it suggested that he needed to present evidence at the immunity hearing to raise a prima facie claim. Although this Court has recognized that the 2017 amendment to the statute “changed both the burden and quantum of proof required for establishing entitlement to immunity,” Boston v. State, 260 So. 3d 445, 446 (Fla. 1st DCA 2018), we have not considered the question whether a party seeking immunity must present evidence to raise a prima facie claim. The Second District recently considered the question in Jefferson v. State, 264 So. 3d 1019 (Fla. 2d DCA 2018). After observing that the terms “claim” and “prima facie” were undefined in the statute, the Second District considered dictionary definitions to determine the meaning of the terms. Id. at 1026-27. Based on its construction of the ordinary meaning of the terms, as ∗ Before the statute was amended in 2017, the burden of proof was on the defendant to establish entitlement to immunity. Rogers’ hearing took place in 2018, following the amendment. 2 well as the imposition of a burden of proof on the party seeking to overcome an immunity claim, the Second District held that “there is no evidentiary burden upon the person seeking Stand Your Ground immunity.” Id. at 1028. The Fourth District also considered the question in Langel v. State, 255 So. 3d 359, 363 (Fla. 4th DCA 2018). Like the Second District, the Fourth District in Langel considered dictionary definitions to interpret the meaning of the term “prima facie” Id. But unlike the Second District, the Fourth District held that a party asserting Stand Your Ground immunity does bear an evidentiary burden. Id. The court held that a party seeking immunity must show the elements for justifiable use of force are met, which ordinarily requires “the defendant to testify or otherwise present or point to evidence from which the elements for justifiable use of force can be inferred.” Id. at 362-63. Even so, we do not reach the question here. Because Rogers did not object to, but agreed with, the trial court’s suggestion at the immunity hearing that he needed to present evidence in support of his prima facie claim, he cannot now be heard to complain that the procedure employed by the trial court departed from the essential requirements of law. See Anderson v. State, 93 So. 3d 1201, 1206 (Fla. 1st DCA 2012) (“[A] party may not make or invite error at trial and then take advantage of the error on appeal.”) (quoting Ashley v. State, 642 So.2d 837, 838 (Fla. 3d DCA 1994)); see also US Bank N.A. as Trustee for CSFB Heat 2006-7 v. Tranumn, 247 So. 3d 567, 571 (Fla. 1st DCA 2018) (recognizing that a party generally cannot raise in a petition for certiorari a ground not raised in the trial court). For this reason, we DENY Rogers’ petition for writ of certiorari. B.L. THOMAS and JAY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ 3 Bruce A. Miller, Public Defender, and Justin Turner, Assistant Public Defender, DeFuniak Springs, for Petitioner. Ashley Moody, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Respondent. 4