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Old April 12, 2012, 07:32 PM   #12
Frank Ettin
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Join Date: November 23, 2005
Location: California - San Francisco
Posts: 6,901
Quote:
Originally Posted by gc70
Quote:
Originally Posted by Frank Ettin
A separate evidentiary hearing on the immunity question is thus far a procedure unique to Florida. We'll have to see how other States with Immunity Laws decide to handle the question.
Immunity cannot be self-executing; absent a process defined by statute, the courts are the only source of authority to dismiss criminal and civil actions.
Sigh! I wish you had read my post more carefully.

Of course immunity is not self-executing. That's why I wrote (post 7):
Quote:
Originally Posted by Frank Ettin
...Every Immunity Law sets out various conditions that must be satisfied in order for immunity to attach. If there is a dispute about whether those conditions have been satisfied, you'll still wind up in court to work that out...
If there's no dispute about whether the conditions giving rise to immunity have been satisfied, no one is going to bother pursuing it.

However, the evidentiary hearing appears thus far to be unique to Florida procedure based on a Florida Supreme Court decision, Dennis v. State, 51 So.3d 456 (Fla., 2010):
Quote:
...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. ... and [we] approve the reasoning of Peterson on that issue....
The appellate court decision referred to in Dennis, Peterson v. State, 983 So.2d 27 (Fla. App., 2008) ruled:
Quote:
Petitioner seeks a writ of prohibition to review an order denying his motion to dismiss based on the statutory immunity established by section 776.032(1), Florida Statutes (2006). We deny the petition and hold that a criminal defendant claiming protection under the statute must demonstrate by a preponderance of the evidence that he or she is immunized from prosecution...
As far as I know, no other State with an Immunity Law has thus far established that particular procedure. There are other ways the matter could be handled. It could for example be reserved to be dealt with at trial. In Dennis, while the Florida Supreme Court adopted the Peterson approach, it affirmed Dennis' conviction at trial. In its analysis, the Florida Supreme Court noted that Dennis was still able to fully present his self defense claim at trial.
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