Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT LARRY HUCKELBY, JR., ) ) Petitioner, ) ) v. ) Case No. 2D20-766 ) STATE OF FLORIDA, ) ) Respondent. ) ___________________________________) Opinion filed February 10, 2021. Petition for Writ of Certiorari to the Circuit Court for Pasco County; Kemba Johnson Lewis, Judge. Jack D. Hoogewind, Dade City, for Petitioner. Ashley Moody, Attorney General, Tallahassee, and Linsey Sims- Bohnenstiehl, Assistant Attorney General, Tampa, for Respondent. SILBERMAN, Judge. Petitioner Larry Huckelby, Jr., seeks certiorari review of an order denying his motion to dismiss a felony battery charge based on immunity from prosecution under the Stand Your Ground Law. We conclude that the trial court failed to apply the correct law when it determined Huckelby was not justified in using nondeadly force in an alleged act of self-defense. We therefore grant the petition. Huckelby was charged with committing felony battery at around 1:30 a.m. on April 9, 2018, when he punched a man outside Happy Dayz bar in Pasco County. Prior to trial, Huckelby filed a motion to dismiss seeking immunity under Florida's Stand Your Ground Law, section 776.032, Florida Statutes (2017), based upon a claim that he acted in self-defense. The court conducted a hearing on the motion at which the following evidence was adduced. A. Facts Brittany Sapp testified that she was working as a bartender at Happy Dayz at the time of the offense. The victim had been in the bar since around midnight and was being demanding and pushy. The victim was not physically aggressive, but the bartender refused to serve him because of his behavior. The victim drank a pitcher of beer and at least seven shots of Jägermeister in about two hours. Huckelby and his friend John Belcher were also in the bar after midnight. At one point, the bartender saw Belcher go to the front door and open it. Huckelby appeared and the men reentered the bar and cashed out. Before they left, Belcher gave her a side hug and told her that there was a man knocked out in the parking lot and that she should call for help after he and Huckelby left. The bartender went outside and saw the victim on the ground face down. When she and some patrons rolled him over, he was snoring and his head was bleeding. There was a folding knife in the open position on the ground next to him. -2- Jazmin Garduno-Gomez testified that she was at the bar at the time of the incident. She remembered that the victim was being very loud. Jazmin, who was sitting at the bar near Huckelby and Belcher, spoke with the men. As they were speaking, Huckelby and Belcher were keeping an eye on the victim. At one point, the victim walked past Huckelby and Belcher on his way outside and said something like "come on, come on." Huckelby got up and went outside to see whom the victim was addressing. Belcher went outside about a minute later. Huckelby and Belcher then came back inside, cashed out, and left. Jazmin went outside with everyone else and saw the victim and the knife on the ground. John Bishop, Jr., testified that he too was at Happy Dayz at the time of the incident. He said that the victim was talking loudly to the bartender and being rude. He had a conversation with the victim, and the victim told him that he killed people for a living. The victim then said he was joking. Bishop also saw the victim in the parking lot and the knife on the ground. Belcher testified that he and Huckelby had gone out drinking and ended up at Happy Dayz. At one point, Huckelby went outside to get a pack of cigarettes from his car. Huckelby did not return right away, so Belcher went to check on him. When Belcher opened the door, he saw Huckelby hit the victim and knock him to the ground. Belcher and Huckelby then went back inside the bar, cashed out, and left. Belcher admitted to telling the bartender that there was a man in the parking lot and she should wait a few minutes before calling the police. Huckelby made statements about the incident in a controlled phone call between him and the bartender later that morning. Huckelby said that he was going out -3- to the truck for cigarettes when someone told him to watch out because the victim was looking for a fight. Huckelby said he did not know the man, but he would talk to him. Huckelby then described the incident as follows: I walked out of the door of that bar and that dude pushed me. As soon as I walked out of that bar and I'm like dude what are [you] pushing me for? And he's like just keep my distance from him. And I'm like well don't be putting your fucking hands on me. And then he did something with his hands and I thought he was going to hit me—so I hit him. .... I just seen him . . . reach back and I thought he was going to punch me. Huckelby did not see the victim with a knife. Huckelby also made a statement to a detective in which he said he saw the victim inside the bar "being like abrupt and kind of loud." Huckelby said he was told the victim challenged someone "to meet him outside." Huckelby was going to get cigarettes from his truck and said he would talk to the victim. As soon as Huckelby walked through the door, the victim shoved him. Huckelby described it as "mush your face back." Huckelby told the victim not to put his hands on him. The victim dropped his hands to his side and told Huckelby to keep his distance. Huckelby thought the victim was about to hit him with something like a beer bottle. At that moment, Belcher walked out of the bar. Huckelby then punched the victim once in the face. Huckelby and Belcher went back inside. Huckelby admitted to the detective that he was very angry when he left and he stepped over the victim's body on his way to his truck. He said he did not see any blood or he would have called an ambulance. He also admitted to posting a picture -4- of his fist on Facebook about 30-45 minutes after the incident. Huckelby is 6'4" and weighs 260 lbs. The detective confirmed that the victim had been carrying a folding knife and that it was found in an open position on the ground by his body. The victim testified that he was at Happy Dayz at the time of the incident, but he did not remember anything. He identified the knife that was retrieved from the scene as belonging to him. The victim was 5'11" and weighed 340 pounds. The State played a grainy, enhanced video of the incident that shows outlines of Huckelby and the victim. The victim exits the bar in a huff, takes a couple of steps toward a car, throws his arms up in the air, and then turns toward the door. About thirty seconds after the victim exits the bar, Huckelby walks outside and approaches the victim. The men are obviously interacting, but the video is so dark and grainy that it is hard to see how close the two are or what gestures they are making. Twenty seconds after Huckelby exits the bar Belcher opens the bar door and stands in the doorway. Three seconds after that Huckelby raises his arm and the victim falls to the ground. B. Stand Your Ground Law Although Huckelby's certiorari petition is before this court under our writ jurisdiction, we review the trial court's ruling on the motion to dismiss as if it were a direct appeal. See Bouie v. State, 292 So. 3d 471, 476 n.1 (Fla. 2d DCA 2020). The question of entitlement to immunity under the Stand Your Ground law "is a mixed question of law and fact because to answer it one must determine the governing law as stated in the statute, find the operative facts, and apply the law to those facts." Id. at 479. This court reviews the lower court's findings of fact for competent, substantial evidence, and we review the court's conclusions of law de novo. Id. We also conduct a -5- de novo review of "a trial court's ultimate conclusion that the defendant did not reasonably believe that the use of force was necessary to prevent imminent death or great bodily harm." Id. at 480. Section 776.032(1) provides for immunity from criminal prosecution for those who are justified in using force under sections 776.012, 776.013, or 776.031. If a defendant raises a facially sufficient claim of entitlement to immunity under chapter 776, the burden of proof is on the State to overcome the immunity by clear and convincing evidence. § 776.032(4). In evaluating Huckelby's claim, the trial court ruled as follows: A jury question is present when the evidence is reasonably susceptible of two views. The Court finds that the State has shown by clear and convincing evidence that the Defendant was not justified in using non-deadly force in self-defense against [the victim] and thus is not entitled to immunity from prosecution. This Court finds that the Defendant has not met his burden of establishing his right to immunity as a matter of law, pursuant to Peterson v. State, 983 So. 2d 27 [(Fla. 1st DCA 2008.)] Huckelby acknowledges the trial court's finding as to the State's evidence, but he argues that the trial court erred by placing any burden of proof on the defense. He contends the court improperly required him to "establish[] his right to immunity as a matter of law, pursuant to Peterson." We agree that the trial court erred in placing an evidentiary burden on Huckelby. Under section 776.032, once the defendant raises a prima facie claim of immunity, the defendant has no further evidentiary burden. Jefferson v. State, 264 So. 3d 1019, 1027 (Fla. 2d DCA 2018), review denied, No. SC19-268, 2019 WL 1445053 (Fla. Apr. 2, 2019); Derossett v. State, 44 Fla. L. Weekly D2713, D2716 (Fla. 5th DCA -6- Nov. 7, 2019). The court's reliance on Peterson was erroneous because that case applied the pre-2017 amendment standard for immunity, which placed the burden of proof on the defendant. Peterson, 983 So. 2d 27, 29 (Fla. 1st DCA 2008); see also Jefferson, 264 So. 3d at 1025 (discussing the previous standard for immunity). Beyond applying an erroneous burden of proof, the court's analysis on the merits of Huckelby's claim is likewise erroneous. The court noted that Huckelby used nondeadly force to respond to nondeadly force, but it focused on the fact that Huckelby did not see the victim with a weapon, concluding that Huckelby's use of nondeadly force was not reasonable. The court explained its reasoning as follows: The Defendant alleges that the victim told him to keep his distance and "mushed" him in his face. The Defendant alleged that he believed that the victim was going to hit or attack him, but he never saw the victim with a weapon or any object that looks like a weapon. Therefore, the defendant was not justified in using non-deadly force in an alleged act of self-defense, and thus the Defendant is not entitled to immunity from prosecution. Under section 776.012(1), a person is authorized to use nondeadly force "when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force." There is no duty to retreat before the use of nondeadly force in self- defense. Id. In evaluating the evidence at a hearing on immunity, an objective standard applies. Garcia v. State, 286 So. 3d 348, 351 (Fla. 2d DCA 2019). "The trial court must determine whether, based on the circumstances as they appeared to the defendant, a reasonable and prudent person situated in the same circumstances and knowing what the defendant knew would have used the same force as did the defendant." Id. "[T]he appearance of danger must have been so real that a reasonably cautious and prudent -7- person under the same circumstances would have believed that the danger could be avoided only through the use of that force." Id. at 352 (quoting Garrett v. State, 148 So. 3d 466, 468 (Fla. 1st DCA 2014)). In this case, the trial court did not determine whether a reasonably prudent person in Huckelby's situation would have used the same force. Instead, the court determined that Huckelby was not justified in using nondeadly force because he did not see the victim with a weapon or anything that looked like a weapon. But Huckelby's defense did not depend upon the use of a weapon. As the court itself stated, Huckelby asserted that he believed the victim was going to hit or attack him. And while there was testimony that Huckelby thought the victim might have had a weapon, there was also testimony that Huckelby thought the victim was going to punch him. It was the trial court's task to weigh conflicting evidence and make determinations regarding witness credibility in reaching its decision. See Edwards v. State, 257 So. 3d 586, 588 (Fla. 1st DCA 2018); Finkelstein v. State, 157 So. 3d 1085, 1087 (Fla. 1st DCA 2015). While the court noted the testimony that had been presented, it did not make the necessary credibility determinations and factual findings. For example, the court did not determine whether the victim's waiting in the parking lot and "mushing" or pushing Huckelby in the face would cause a reasonable person in Huckelby's position to respond to the victim's contact and arm movements as Huckelby did. The court should have considered whether the danger of the victim's punching or attacking Huckelby was so real that a reasonable and prudent person under those circumstances would have believed that it could be avoided only by punching the victim -8- in the face. These determinations will need to be made when the trial court reconsiders Huckelby's motion to dismiss. Accordingly, we grant the petition for certiorari and quash the order denying Huckelby's motion to dismiss. Petition granted. VILLANTI and ATKINSON, JJ., Concur. -9-