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Florida lawmakers changed 'stand your ground' law. Chaos followed.

Retired Tampa police Capt. Curtis Reeves Jr. gets emotional while testifying at his "stand your ground" hearing at the Pasco County Courthouse in Dade City in February 2017. Reeves shot and killed Chad Oulson, 43, over the use of his cellphone during a confrontation inside the Cobb Grove 16 theaters in Wesley Chapel in 2014. But now the legislature has changed the "stand your ground" law, and defendants like Reeves may try to use that to appeal their cases. [OCTAVIO JONES | Times]
Published Feb. 2, 2018

Seven months after lawmakers revised the state's controversial "stand your ground" law, the criminal justice system has been left in disarray as judges hand down conflicting rulings trying to answer one question:

Can the new statute be applied to cases that had not yet gone to trial before it became law in June?

That legal quandary has stalled cases across Florida as prosecutors, defense attorneys, and judges wait for clarity from the appellate courts. Meanwhile lawyers keep filing appeals, including for at least four defendants in Tampa Bay.

"Now we're in a position where we have to figure out how to wade through this confusion and gridlock," said Hillsborough State Attorney Andrew Warren. "It's a waste of taxpayer money and it disrupts our system when we don't have consistency."

The fate of those defendants — many of whom are accused of taking a life — could ultimately be decided by the state's highest court.

"Some judges are saying yes and some judges are saying no," said Pinellas-Pasco Public Defender Bob Dillinger. "It's obviously something that really needs to be resolved by the Florida Supreme Court."

• • •

Under the state's "stand your ground" law, citizens are justified in using deadly force without the need to retreat if they believe they or others face "imminent death or great bodily harm."

Floridians have always had the right to defend themselves. But in 2005 the Legislature took that a step further, removing the gun owner's duty to try to escape danger before deciding to defend themselves.

Critics have complained that the law created a "shoot first" mentality.

Since 2005, it has been up to the defense to show their client was immune from prosecution under "stand your ground."

That changed last year when state Sen. Rob Bradley, R-Fleming Island, filed SB 128. It was the second straight year he had filed a bill that proposed shifting the burden of proof from defense lawyers to prosecutors.

FROM 2016: Tampa man shoots father of three, then calls 'stand your ground' hotline

Opponents argued that the change would lead prosecutors to essentially try cases twice — once to prove that "stand your ground" didn't apply, and a second time at trial. They also feared it would embolden criminals who could claim self-defense to avoid facing charges after a deadly shooting.

Supporters like the Florida Public Defender Association said the state should have to prove guilt during every phase of a criminal case.

"We felt like it helped level the playing field between us and the prosecutors," said Stacy Scott, the public defender of the Eighth Judicial Circuit in North Central Florida. "Prosecutors already have way too much power and way too much leverage in every type of criminal case."

The bill was also backed by the powerful National Rifle Association. It passed through the Senate and the House, and Gov. Rick Scott signed it into law on June 9.

• • •

It didn't take long for the new law to be invoked in courtrooms, resulting in chaos.

Just weeks after it passed, two Miami circuit judges ruled the revised statute was unconstitutional, saying only the Florida Supreme Court could make such a change.

Then came a flurry of rulings on how to apply the new law to defendants awaiting trial.

In Hillsborough County, for instance, a circuit judge ruled in July that it could be used in the hearing of Randolph Graham, charged with fatally stabbing a former University of South Florida football player outside a Ybor City nightclub in September 2015.

A judge rejected the self-defense claim and Graham, 25, is now awaiting trial for second-degree murder. If convicted, he could get a life sentence.

That same month, across the bay in a Pinellas courtroom, defendant Bobby Ryan was also allowed to invoke the new standard in his 2016 case. He was accused of engaging in a scuffle outside a St. Petersburg bar that turned fatal.

The judge dismissed the case against Ryan, 41, but the state appealed.

Later that month, in another Hillsborough case, a judge ruled that it couldn't be used in the 2015 second-degree murder case against Orin Bivens, 50, charged with killing his ex-wife's husband during an argument.

Assistant Public Defender Mike Peacock, who represents Bivens, appealed that decision. In court records, he explains that changes to the law are "procedural."

That means the new standard "must be applied immediately to pending cases because they merely affected the burden of proof," Peacock wrote. It's the same argument crafted by other defense attorneys filing appeals.

But prosecutors like Warren disagree.

"Any crime that was committed before June 9, 2017 should proceed under the law as it existed then," he said.

The Florida Attorney General's Office, which handles appeals on behalf of the state, is taking the same stance. That's because, as the agency said in a statement, it believes "the Legislature did not intend for its recent amendment to the Stand Your Ground law to be applied retroactively."

Rep. Bobby Payne, R-Palatka, filed the House version of the bill. Reached by phone this week, he said the Legislature's purpose was to revise the law for future cases.

"We didn't expect that folks would go back prior to 2017," he said. "Certainly, any good attorney would go back and try to pursue that on behalf of their client."

Some prosecutors are choosing not to take sides on the issue, including Pinellas-Pasco State Attorney Bernie McCabe.

"I don't have a problem applying the new law to old cases," McCabe said.

Here's his explanation: Under the old statute, the defense had to prove by the "preponderance of the evidence" that it was self-defense. Now, the law reads the state's burden is "clear and convincing evidence."

McCabe said he doesn't believe there's much of a difference in the weight between those two standards of proof.

"How do you put a finger on what that means?" McCabe said. "I just think those terms are kind of the same thing and at the end of the day they wouldn't make a difference."

2014 MOVIE THEATER SHOOTING: Judge rejects 'stand your ground' in Curtis Reeves case, pushing case toward trial.

Whatever the appellate courts decide could also affect the case against Curtis Reeves, the retired Tampa police captain charged with fatally shooting a man inside a Wesley Chapel movie theater in 2014.

In March, before the new "stand your ground" law was enacted, Reeves' lawyers argued in a two-week hearing that their client acted in self-defense. The judge denied his claim.

Now his lawyers are appealing that decision.

If a higher court doesn't rule in their favor, said defense attorney Richard Escobar, "I believe it's clear that Mr. Reeves is entitled to a new 'stand your ground' hearing because of the change in the law."

• • •

The wait for clarity means that many cases remain unresolved.

When Bobby Ryan invoked Stand Your Ground last year, prosecutors didn't argue that the hearing should be conducted under the old statute.

Ryan was facing a manslaughter charge for the death of Christopher Motlenski. In February 2016, the men got into a fight outside Angelo's Grill and Bar on First Avenue N in downtown St. Petersburg. Prosecutors said Ryan punched Motlenski, who fell onto the pavement and hit his head.

Motlenski died weeks later. His family could not be reached for comment.

Ryan's attorneys argued that he acted in self-defense after Motlenski "bull charged" their client's friend against a pair of doors.

In August, Pinellas-Pasco Circuit Judge Frank Quesada dismissed the case. But three days later, the Attorney General's Office filed an appeal, in part because they believe the law isn't retroactive.

Now Ryan waits for the 2nd District Court of Appeal to make a ruling.

Meanwhile the father of two teenagers and former construction superintendent is looking for work. But he doesn't know if he'll have to go back to court to stand trial, and risk going to prison.

"It went from relief to basically right back where I am trying to figure out this situation," Ryan said this week. "Nobody can get on with their lives because nobody has any idea what's going to happen."

Times staff writer Dan Sullivan contributed to this report. Contact Laura C. Morel at lmorel@tampabay.com. Follow @lauracmorel.

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