Replies

You're right and you're wrong. ;-) My post was not a law review article - I was just trying to clear up a blatantly false claim.

Re "court created" procedure - it was exactly that. At the trial court level defense attorneys raised the immunity provision and the trial courts had to determine how to deal with it.

The legislature could have provided under 776 "There shall/may be a pre-trial hearing ..." but did not.

Trial courts were left to work it out but the critical issue was how they treated issues of material fact.

Who knows how many pre-trial SYG motions to dismiss that were made and denied or granted but not appealed by the losing side.

The trial court in Dennis said - sorry issues of material fact and the Peterson trial court said that approach denied the meaning of immunity in the statute.

The Peterson approach won out - a court created hearing allowing the trial judge to consider both matters of law and fact in a pre-trial motion to dismiss in SYG cases.

From Dennis (FL Sup Ct.)- its clear to me that the Peterson case (affirmed by Dennis) created the outlines of the SYG hearing.

"In this case we consider whether a trial court should conduct a pretrial evidentiary hearing and resolve issues of fact when ruling on a motion to dismiss asserting immunity from criminal prosecution pursuant to section 776.032, Florida Statutes (2006), commonly known as the "Stand Your Ground" statute.

We have for review the decision of the Fourth District Court of Appeal in Dennis v. State, 17 So.3d 305 (Fla. 4th DCA 2009), which held that the existence of disputed issues of material fact required the denial of Dennis's motions to dismiss.

The Fourth District certified that its decision is in direct conflict with the decision of the First District Court of Appeal in Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008), which held that the existence of disputed issues of material fact did not warrant denial of a motion to dismiss asserting immunity under section 776.032. We have jurisdiction. See art. V, 3(b)(4), Fla. Const.

We conclude that where a criminal defendant files a motion to dismiss on the basis of section 776.032, the trial court should decide the factual question of the applicability of the statutory immunity.

Accordingly, we disapprove the Fourth District's reasoning in Dennis and approve the reasoning of Peterson on that issue. "

Lastly, when I said "prior to SYG" (1995) there was no SYG, no immunity, and because of the inevitable "question of material fact" there was no motion to dismiss on self defense grounds for all practical purposes.

Just standing my ground ... ;-)