In December of 2010, the Florida Supreme Court held that when a Defendant files a motion to dismiss claiming immunity from prosecution under Florida statute section 776.032, otherwise known as Florida’s”Stand Your Ground” statute, the trial court is required to hold a pre-trial evidentiary hearing to “decide the factual question of the applicability of the statutory immunity.” See Dennis v. State, 51 So. 3d 456, 457 (Fla. 2010). According to the Court, while a motion to dismiss based on section 776.032 should properly be filed pursuant to Fla. R. Crim. P. 3.190(b), the trial court is still required to hold an evidentiary hearing even if the motion to dismiss is mistakenly filed pursuant to Fla. R. Crim. P. 3.190(c)(4). Finally, the Court noted that any motions to dismiss mistakenly filed under Rule 3.190(c)(4) should be treated as having been properly filed under Rule 3.190(b). Where the trial court fails to hold a pre-trial evidentiary hearing, any appeal of the failure to hold the hearing should be analyzed under the “harmless error test” of State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). See Dennis, 51 So. 3d 464 (noting that an error is harmless if “the error complained of did not contribute to the verdict or, alternatively stated, . . . that there is no reasonable possibility that the error contributed to the conviction.”)
This issue continues to be a hot topic. On August 31, 2011, Florida’s Fourth District Court of Appeal was the latest court to issue an opinion on the issue. See Govoni v. State, No. 4D09-2371 (remanding case for trial court to conduct evidentiary hearing pursuant to Dennis) (slip opinion).