Opinion
Case No. 5D18-2935
10-11-2019
John Paul BOUTIETTE, Appellant, v. STATE of Florida, Appellee.
James S. Purdy, Public Defender, and Sean Kevin Gravel, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
James S. Purdy, Public Defender, and Sean Kevin Gravel, Assistant Public Defender, Daytona Beach, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.
Appellant, John Paul Boutiette, appeals his judgment and sentence arguing, inter alia , that he is entitled to a new pretrial immunity hearing based upon the retroactive application of section 776.032(4), Florida Statutes (2017), citing to this court's prior decision in Fuller v. State , 257 So. 3d 521 (Fla. 5th DCA 2018). We agree and remand for a new pretrial "Stand Your Ground" immunity hearing where the State will bear the burden of proof. We again certify conflict with Love v. State , 247 So. 3d 609 (Fla. 3d DCA), review granted , No. SC18-747, 2018 WL 3147946 (Fla. June 26, 2018), and the decisions in Langel v. State , 255 So. 3d 359, 361 (Fla. 4th DCA 2018), and Hight v. State , 253 So. 3d 1137, 1143 (Fla. 4th DCA 2018). We otherwise affirm.
On remand, if the trial court concludes that Appellant is entitled to immunity, the court should enter an order to that effect and dismiss the information as to Counts 1 through 4 with prejudice. If, on the other hand, the trial court determines that Appellant is not entitled to immunity from prosecution, the trial court should enter an order containing its findings and reinstate Appellant's convictions as to Counts 1 through 4.
AFFIRMED in part; REVERSED in part; and REMANDED with instructions; CONFLICT RE-CERTIFIED.
LAMBERT, EISNAUGLE and SASSO, JJ., concur.