Full Opinion

Third District Court of Appeal State of Florida Opinion filed February 26, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D18-1819 Lower Tribunal No. 16-4132 ________________ The State of Florida, Appellant, vs. Martin Marrero, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Stephen Millan, Judge. Ashley Moody, Attorney General, and Gabrielle Raemy Charest-Turken and Jeffrey R. Geldens, Assistant Attorneys General, for appellant. Scott W. Sakin, P.A., and Scott W. Sakin (Weston), for appellee. Before LINDSEY, HENDON, and MILLER, JJ. HENDON, J. The State appeals from the trial court’s dismissal of the charges against the defendant, Martin Marrero, based on Stand Your Ground immunity, section 776.032(4), Florida Statutes. We vacate the order on appeal and remand for further proceedings. FACTS. Marrero is a business owner whose construction business is located in an industrial complex. Marrero asserts that his business parking spaces, marked by a “no parking” sign, are frequently blocked by the people who loiter at a nearby body shop. On the day of the charged offense, Marrero testified that Anthony Jackson parked in front of Marrero’s business, blocking two spaces. Marrero confronted him and asked him to move out of that space. Marrero claims that Jackson became belligerent, brought out a red gas can, and threatened to burn his business down. Marrero testified that he moved toward Jackson, grabbed the gas can from Jackson’s hands, and went into his business and put the gas can inside. He then retrieved his gun, put it in his waistband, and went back outside. A crowd from the body shop came over and threatened Marrero with violence. Marrero removed the gun from his waistband, did not point it at anyone, and called the police. Marrero was subsequently charged with 1) aggravated assault with a deadly weapon by allegedly pouring gasoline on a car occupied by the victim, Anthony 2 Jackson, and threatening to light the gas by flicking a lighter near it, and 2) criminal mischief by pouring gas on Jackson’s car. In September 2017, Marrero moved to dismiss the information, claiming immunity from prosecution based on the Stand Your Ground statute, section 776.032, Florida Statutes (2017). Marrero claimed it was he who was threatened by Jackson, who was trespassing on his business property and who, with his friends, threatened him and his business. After an evidentiary hearing at which Marrero, Jackson, and other witnesses testified, the trial court found that Marrero “carried the burden of proving entitlement to this immunity by a preponderance of the evidence.” ANALYSIS. “Florida’s Stand Your Ground law confers immunity from prosecution if an individual uses deadly force in accordance with section 776.012(2), Florida Statutes.” Fletcher v. State, 273 So. 3d 1187, 1189 (Fla. 1st DCA 2019); see also § 776.032(1), Fla. Stat. (2018). Section 776.012(2) allows an individual to use or threaten to use deadly force “if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.” When a defendant files a motion to dismiss under section 776.012(2), the trial court must conduct an evidentiary hearing and weigh the factual evidence presented. Dennis v. State, 51 So. 3d 456, 458 (Fla. 3 2010). Under our standard of review, the trial court’s factual findings are “presumed correct and can be reversed only if they are not supported by competent substantial evidence, while the trial court’s legal conclusions are reviewed de novo.” Arauz v. State, 171 So. 3d 160, 161-62 (Fla. 3d DCA 2015) (quoting Mobley v. State, 132 So. 3d 1160, 1162 (Fla. 3d DCA 2014)). The order on appeal is problematic. First, Marrero was not charged with a firearm offense. The trial court’s order, however, appears to base its dismissal on its finding that Marrero is “licensed to carry a concealed firearm,” its legal conclusion that Marrero “was reasonably justified in producing a firearm” in response to the belligerent crowd gathered to witness the parking dispute, and that “his conduct was necessary to defend against imminent use of unlawful force.” The trial court made some brief findings about the lack of evidence of gasoline on the car or victim’s clothing, but the court made no findings related to whether Marrero committed the offenses set forth in the charges against him, and whether he was justified in so committing those offenses such that Stand Your Ground immunity applied. The word “conduct” is not sufficient to encompass the charged crime where the order fails to specifically address the aggravated assault that Marrero was charged with, and fails to connect the legal conclusion of immunity to that act. 4 In addition, Marrero maintained that he did not commit the acts charged against him, i.e., splashing gas on Jackson’s car and threatening to ignite it while Jackson was in the car. The Stand Your Ground immunity statute is invoked if the defendant admits to the conduct charged, but asserts that the conduct was justified as self-defense under the circumstances. Marrero’s motion to dismiss specifically denied any use of force (i.e., gas plus lighter), and he repeatedly denied the charges during the pre-trial evidentiary hearing. The plain language of section 776.012 requires that a person use or threaten to use deadly force, and have a reasonable belief that such use or threat to use is necessary to prevent imminent death or great bodily harm. We find that the trial court’s order fails to recognize the issue that Marrero denied the very acts that would establish self-defense. We therefore vacate the order on appeal, and remand for further proceedings. Order vacated; cause remanded. 5