State v. Marrero, No. 3D18-1819

299 So.3d 489

The STATE of Florida, Appellant,

v.Martin MARRERO, Appellee.

No. 3D18-1819

District Court of Appeal of Florida, Third District.

Opinion filed February 26, 2020.

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 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. 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...