()

Felons who used a firearm to defend themselves could seek immunity under the Stand Your Ground law before June 20, the Fourth District Court of Appeal ruled.

The decision diffuses a conflict the Fourth District had with the Second District and can make null a decision by the Florida Supreme Court to hear a related case.

On July 2, the Supreme Court agreed to hear Bragdon v. State, which also originated in the Fourth District.

The Fourth District opinion issued Wednesday was an en banc reconsideration of Harvey M. Hill v. State of Florida, which was the original Stand Your Ground case involving a felon’s use of a gun, and the case upon which Bragdon was based.

Hill was a 2009 circuit court case from Palm Beach County. The defendant testified he was involved in an altercation with Anton Peavy and Andre Solomon over a woman with whom he had sexual relations. Peavy and Solomon approached Hill as he sat on his porch.

Solomon had a gun. Hill described the two men as physically larger than himself. He claimed Peavy snapped and the two men rushed him. Hill was cornered on his porch, out a gun and shot Peavy once in the stomach.

Hill sought a motion to dismiss based on the Stand Your Ground law, but the prosecutor argued Hill wasn’t entitled to immunity because section 776.013(3) of the law bars persons “engaged in an unlawful activity.”

Palm Beach Circuit Judge John Kastrenakes rejected the prosecutor’s argument and granted the motion. Kastrenakes reasoned the “unlawful activity” exception applied only to a separately-charged felony involving use of force.

On appeal, the Fourth District agreed with the state in a 2011 opinion. Hill’s case was remanded to circuit court and he changed his defense, seeking immunity under Section 776.012(1).

That section of the law has no language about being engaged in an unlawful activity. But the trial court turned Hill down, concluding the Fourth District decision prohibited a felon in possession of a firearm from claiming self defense.

It was Hill’s turn to appeal.

“Because we now clarify that the holding in State v. Hill was indeed applicable only to the section of the Stand Your Ground law which was at issue in that case—section 776.013(3)—we grant the petition. We recede from any language in Hill suggesting the contrary,” Fourth District Judge W. Matthew Stevenson wrote for the court.

Section 776.013 refers to the defense of home or the place where a person stands and has a right to be. Section 776.012 refers simply to the defense of person.

Stevenson said the court still holds that a felon with a firearm had no immunity under 776.013. However, Hill was immune under 776.012.

This reasoning was used by the Second District in Accord Little v. State, a 2013 decision that set up the inter-district conflict.

“We agree with (Second District Judge Stevan) Northcutt that any ambiguity created by contradictory language … requires that these provisions of the criminal code be strictly construed most favorably to the accused,” Stevenson said.

“This opinion should eliminate any perceived conflict between our courts’ positions on this issue,” Stevenson said.

There was no clear indiction in the chapter that the right to seek immunity under 776.012 was limited to those not engaged in unlawful activity, he said. However, in the last legislative session, the section Hill and Little relied upon for immunity was amended. As of June 20, section 776.012 also requires persons using deadly force to stand their ground can’t be “engaged in a criminal activity.”

Stevenson said this amendment supports the court’s conclusion in Hill’s case.

The Fourth District quashed the trial court’s order denying Hill’s second motion to dismiss and remanded his case for further proceedings.

Stevenson also acknowledged that its actions in the Hill and Bragdon cases caused the conflict that put the issue before the Supreme Court.

“To the extent the petitioner there may have relied on section 776.012, … Bragdon may need to be remanded for further proceedings,” Stevenson wrote in a parting footnote.

Bragdon’s attorney, Jack Fleischman of Fleischman & Fleischman in West Palm Beach, said the Hill opinion may cause the Supreme Court to reconsider hearing the case, but he will proceed as if there will be oral argument. His brief is due June 28.

Fleischman contends felons should still be able to arm themselves in self-defense in temporary, emergency situations.

“Our position is that under that section that talks about unlawful activity the status of being a convicted felon alone doesn’t make the ‘activity’ of having a gun unlawful. There is federal case law that, in an emergency, a convicted felon can defend himself,” Fleischman said.

Cherry Grant of Good-Earnest Law in Lake Worth, Hill’s defense attorney, said Hill is happy the Fourth District agreed he was entitled to raise his right to immunity.

“As the trial judge originally found, he was attacked on his own front porch by two people, had nowhere to retreat, even if retreat had been required, and was justified in defending himself,” Grant said.

“The fact that he had a gun quite possibly saved his life,” she said.