In Bretherick v. State, 170 So.3d 766 (Fla. 2015), the Supreme Court of Florida concluded that the Fifth District Court of Appeal correctly determined that the defendant bears the burden of proof, by a preponderance of the evidence, to demonstrate entitlement to Stand Your Ground immunity at the pretrial evidentiary hearing. The Court noted that in Dennis v. State, 51 So.3d 456 (Fla. 2010), it approved the procedure of a pretrial evidentiary hearing set forth in Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008), for evaluating a claim of immunity under the Stand Your Ground law.
Jared Bretherick was charged with aggravated assault with a firearm for his alleged conduct during an encounter with another driver on a highway in 2011, and Bretherick filed a motion to dismiss under Florida Rule of Criminal Procedure 3.190(b), claiming immunity from prosecution under Florida’s Stand Your Ground law. Bretherick sought a pretrial evidentiary hearing on his motion to dismiss, consistent with the Court’s decision in Dennis, which approved the procedure of a pretrial evidentiary hearing to consider a defendant’s claim of entitlement to Stand Your Ground immunity, but the trial court concluded that Bretherick did not establish entitlement to immunity by a preponderance of the evidence and denied Bretherick’s motion to dismiss.
In response to the Supreme Court’s decision in Bretherick, Florida senators approved Senate Bill 128 (SB 128) in March 2017 for the second consecutive session. The bill shifts the burden of proof from the defendant to the prosecutor during the pretrial phase of Stand Your Ground cases and was signed into law by Governor Rick Scott on June 9.