SIXTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
Case No. 6D2024-0393
Lower Tribunal No. 23-1067-F
JAMES GAINVORS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
Appeal from the Circuit Court for Charlotte County.
Lisa S. Porter, Judge.
October 16, 2026
ON APPELLANT’S MOTION FOR REHEARING AND/OR WRITTEN OPINION
BROWNLEE, J.
Appellant’s pro se motion for extension of time, docketed June 23, 2025, and
motion for rehearing and/or written opinion, docketed July 11, 2025, are both
stricken as nullities. See Logan v. State, 846 So. 2d 472, 479 (Fla. 2003); see also
Johnson v. State, 974 So. 2d 363, 364–65 (Fla. 2008) (“The [Logan] rule applies to
any pro se filings submitted by litigants seeking affirmative relief in the context of
any criminal proceeding where a death sentence has not been imposed, whether
1
direct or collateral, either in the trial court or a district court of appeal, and who are
represented by counsel in those proceedings. . . . Any papers filed pro se, addressing
matters that are related to such ongoing proceedings, whether in the form of a
petition, notice, motion, or another form of request for relief, will be deemed
unauthorized and subsequently dismissed.”).
WOZNIAK, J., concurs.
SMITH, J., dissents, with opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING
AND DISPOSITION THEREOF IF TIMELY FILED
SMITH, J., dissenting, with opinion.
While I agree with the majority that Appellant, James Gainvors (“Gainvors”),
filed his motions pro se while represented by counsel, I would on our inherent
authority1 withdraw our prior decision and replace it with the following.
1
See Florida Rule of Appellate Procedure 9.330(e) (“[T]he rule is not meant to limit the court’s inherent authority to reconsider nonfinal appellate orders and decisions[.]”); Ford Motor Co. v. Hetsler, 51 Fla. L. Weekly D1582, D1583 (Fla. 5th DCA July 31, 2026) (“However, on our own motion, we withdraw our prior decision, and replace it with the following opinion.” (footnote omitted)); Quisenberry v. Bates, 359 So. 3d 1, 1 (Fla. 4th DCA 2023) (court sua sponte withdrew mandate and original opinion and substituted new opinion); Simpson v. State, 505 So. 2d 1378, 1380-81 (Fla. 1st DCA 1987) (same); Olde MacDonald’s Farms Inns Corp. v. McDill Columbus Corp., 476 So. 2d 315, 315-16 (Fla. 5th DCA 1985) (same).
2
During daylight hours, Matthew Hanson (“Hanson”) aggressively and
threateningly approached the front door of the home of Gainvors while Gainvors,
his wife, and his youngest child were inside. Hanson, who was known to carry a
knife and was in fact carrying a concealed knife strapped to his belt, had a significant
history of violence against the Gainvors family. While approaching, he shouted,
“Come get some, come on, come the f**k out,” “Come on, come on, you p***y,”
“Pull out a gun! I don’t give a f**k about your gun motherf**ker,” “Stand your
ground motherf**ker, let’s go,” and “You want to pull a gun out on me, you better
use it fa**ot,” all of which were captured on Gainvors’s Ring camera. Despite
acknowledging Gainvors’s weapon, Hanson continued his rants and his advance
toward the front door of Gainvors’s home where Gainvors stood. When Hanson had
come within feet of Gainvors’s front door (a distance of about the length of a
compact car as reflected in the video footage) with no signs of backing down,
Gainvors fired a single shot, striking Hanson in the shoulder. Gainvors then went
inside his home and unloaded his weapon. His wife contacted law enforcement, and
Gainvors waited for deputies to arrive. Gainvors was subsequently charged with
second degree murder and ultimately found guilty of manslaughter for which he is
now serving a fifteen-year prison sentence. Gainvors’s challenge in this appeal is
limited to the trial court’s ruling on the pretrial motion for immunity; he does not
challenge either the trial results or the trial court’s denial of his motion for judgment
of acquittal. Although it does not appear the trial court’s denial of Gainvors’s pretrial
3
“stand your ground” immunity motion was supported by substantial competent
evidence, under Boston v. State, 326 So. 3d 673 (Fla. 2021), the error in the pretrial
immunity hearing was rendered harmless by the jury’s verdict finding Gainvors
guilty beyond a reasonable doubt.2 Therefore, affirmance is required.
I. Background and Procedural History
Gainvors was charged with second-degree murder for the shooting of Hanson
which occurred on July 5, 2023. By sworn motion, Gainvors asserted that he was
justified in using deadly force to defend himself and his family and therefore was
entitled to immunity under Florida’s Stand-Your-Ground law, section 776, Florida
Statutes. The trial court held a pretrial immunity hearing on October 17, 2023, at
which the State stipulated that Gainvors had established a prima facie case of selfdefense immunity, thereby shifting the burden to the State.
At the time of the shooting, Gainvors lived with his wife and children in their
single-family home in Charlotte County.3 His wife and youngest child were home
2
Although the evidence at trial may have been materially similar to that considered at the pretrial immunity hearing, Gainvors has not challenged the trial court’s ruling on his motion for judgment of acquittal. “Claims of error not raised by an appellant in its initial brief are deemed abandoned.” D.H. v. Adept Cmty. Services, Inc., 271 So. 3d 870, 880 (Fla. 2018) (citing Anheuser-Busch Cos. v. Staples, 125 So.3d 309, 312 (Fla. 1st DCA 2013)).
The Ring doorbell footage was introduced at the pretrial immunity hearing,
3
and both the Ring and security camera videos came in at trial. The Ring footage included both audio and video. The facts discussed in this section are based on evidence considered at the pretrial immunity hearing except where otherwise noted.
4
at the time of the incident. Around 1:00 p.m., Hanson was driving by Gainvors’s
house when Hanson was told one of his passengers that someone in Gainvors’s
house had flipped him off. Hanson stopped his vehicle in front of Gainvors’s home
and immediately exited. Hanson’s approach and his statements were all captured on
the Ring doorbell camera.
Gainvors had reason to fear Hanson: per his sworn motion, Hanson had a
reputation for community violence, had physically attacked him in the past, and had
threatened to kill him and his family. According to Gainvors, Hanson routinely
armed himself with a knife, a fact confirmed through one of the State’s own
witnesses at the pretrial hearing. Evidence at trial showed that a concealed, sheathed
knife was found on Hanson’s waist belt by law enforcement after the shooting.
Trial testimony further explained the prior physical attacks and threats.
Gainvors’s wife testified that Hanson had tried to attack one of the Gainvorses’
children in 2018. Also, Hanson sent a Facebook message to Gainvors’s wife in
October 2022 stating “CALL THE COPS CALL WHO U WANT SHIIIIII BOY I
DONT GIVE A F**K IM THAT DUMB CRAZY F**KIN FLORIDA CRACKER
ILL BOND OUT AND DO IT ALLLLL AGAIN . . . wait till I come on that f***ing
street again and go ahead and call the cops and do what the f**k you want.”
Following October 2022, Gainvors’s wife testified that Hanson would constantly
yell at her, stating he would “kill everyone in [their] house” and that he “owned the
street and the cops couldn’t stop him.”
5
The Ring doorbell footage introduced at the pretrial immunity hearing reveals
the following timeline of Hanson’s approach and the shooting:
Timestamp) Description
1:35 4 Hanson stops vehicle in front of Gainvors’s home.
Narrative: Hanson shouts, “Come f**king get some. Come get some, come on, come the f**k out.” Hanson then exits the vehicle stepping into the road while continuing to shout at Gainvors, “You want to flick me off . . . you little b***h.” Hanson steps forward to the edge of Gainvors’s yard and yells, “Sit you’re a** in the f**king house. You ain’t coming out here fa**ot. Come on, come the f**k on James.” Gainvors opens his front door and steps outside. Hanson goes back to his vehicle while shouting, “Come on, come on pu**y.” Hanson places items in the driver’s seat of the vehicle (according to the State’s witness, those items included two knives). Hanson then comes back to the edge of Gainvors’s yard. Gainvors exposes his firearm then shortly after draws the same keeping the barrel pointed down.
4
The timestamps reflect minutes and seconds.
6
1:53 Hanson stands at edge of Gainvors’s yard.
Narrative: After returning from his vehicle and having seen Gainvors’s drawn firearm (the video shows the gun in Gainvors’s right hand, pointed down), Hanson stands at the edge of Gainvors’s yard and yells, “Pull out a gun! I don’t give a f**k about your gun motherf**ker. Stand your ground motherf**ker, let’s go. You want to pull a gun out on me, you better use it fa**ot.”
7
2:02 Hanson advances toward Gainvors and the front door of Gainvors’s
residence.
Narrative: Hanson quickly advances in large strides directly toward Gainvors’s front door. He yells at Gainvors, “You better use it [the firearm] b***h, use it, use it, use that sh*t motherf**ker!” Gainvors’ wife can be seen emerging briefly from the front door (as shown at the bottom right) as Hanson is advancing on Gainvors’s front yard.
8
2:06 Gainvors raises firearm, Hanson stops.
Narrative: Hanson stops advancing when Gainvors raises his firearm. Hanson is at that point standing about one compact car-length away from the sidewalk abutting the home. According to Gainvors’s sworn motion, he was “alarmed that he could not retreat back into the home before [Hanson] would actually reach him, if [Hanson] chose to advance.”
Narrative: Footage from a second security camera introduced at trial further reveals the proximity of Hanson to Gainvors at the moment the shot was fired.
9
2:07 Hanson continues confrontation, places his hands on his hips.
Narrative: Despite Gainvors pointing a weapon directly at him, Hanson does not back away but rather continues yelling “Come on, come on!” Hanson places his hands on his hips5 and gestures his head downwards.
5
As noted previously, law enforcement later recovered a concealed knife attached to Hanson’s belt. The knife was positioned on Hanson’s right side.
10
2:08 Gainvors discharges firearm, strikes Hanson in the shoulder.
Narrative: Gainvors discharges a single shot from his firearm, striking Hanson in the shoulder region.
After considering the sworn testimony included in Gainvors’s motion, the
testimony and evidence produced at the hearing, and the footage of the shooting
captured by Gainvors’s Ring doorbell camera, the trial court issued a written order
denying immunity on October 19, 2023. The court held:
10. When determining whether a Defendant is entitled to immunity, the
Court must determine whether, based on the circumstances as they
appeared to the defendant when he acted, a reasonable and prudent
person situated in the same circumstances and knowing what the
Defendant knew would have used the same force as did the Defendant.
Mobley v. State, 132 So.3d 1160, 1164 (Fla. 3d DCA 2014). In other
words, did the Defendant have no other choice but to use his firearm
that day?
11. Defendant argues he was justified in using deadly force to protect
himself and his family from Mr. Hanson’s advances. He argues that the
video confirms Mr. Hanson made an aggressive move which caused the
11
Defendant to pull the trigger on the firearm. It is undisputed that Mr.
Hanson had nothing in his hands when he approached the Defendant
which is confirmed in the video.
12. Having considered the testimony and evidence, and having weighed
the credibility of the witnesses at the hearing, the Court finds that the
State has shown by clear and convincing evidence that the Defendant
is not entitled to immunity under the Statute. The video is clear that Mr.
Hanson stopped his advance in Defendant’s yard, put his hands on his
hips and encouraged Defendant to shoot him, which the Defendant did.
The evidence does not support Defendant’s claim that he was in
imminent fear of Mr. Hanson. In fact, Defendant’s tactical position in
pointing the gun, as well as his silence, belies this argument.
Defendant’s actions were not the actions of a reasonable and prudent
person given the circumstances on that day. Accordingly, it is
ORDERED AND ADJUDGED that Defendant’s Motion to Establish
Immunity Pursuant to Fla. Stat. 776 is DENIED.
(Emphasis added).
At trial, the Ring doorbell camera and security camera footage were
introduced as evidence. Gainvors moved for a judgment of acquittal again asserting
stand-your-ground immunity, and that motion was also denied. The jury ultimately
found Gainvors guilty of manslaughter.
II. Applicable Law
In his pretrial immunity motion, Gainvors relied on section 776.012(2),
Florida Statutes (2023), which establishes when a person may use deadly force in
self-defense. Section 776.012(2) provides:
A person is justified in using or threatening to use deadly force if he or
she reasonably believes that using or threatening to use such force is
necessary to prevent imminent death or great bodily harm to himself or
herself or another or to prevent the imminent commission of a forcible
12
felony. A person who uses or threatens to use deadly force in
accordance with this subsection does not have a duty to retreat and has
the right to stand his or her ground if the person using or threatening to
use the deadly force is not engaged in a criminal activity and is in a
place where he or she has a right to be.
Thus, the justifiable use of deadly force requires a reasonable belief that deadly force
is necessary to prevent imminent death, great bodily harm, or commission of a
forcible felony. § 776.012(2), Fla. Stat.
This statutory scheme contains “both a subjective and objective component.”
Oquendo v. State, 420 So. 3d. 466, 475 (Fla. 2025). The defendant must believe
deadly force is necessary. Id. But the use of deadly force must also be reasonable
under the circumstances “as they appeared to the defendant when he or she acted.”
Mobley v. State, 132 So. 3d 1160, 1164–65 (Fla. 3d DCA 2014). The question is
whether “a reasonable and prudent person in the same position as the defendant
would believe that the use of deadly force is necessary to prevent imminent death or
great bodily harm or the imminent commission of a forcible felony.” Bouie v. State,
292 So. 3d 471, 481 (Fla. 2d DCA 2020). This inquiry requires consideration of
“the totality of the circumstances” preceding the use of deadly force. Mobley, 132
So. 3d at 1166.
The victim’s reputation of being violent, prior threats made by the victim to
the defendant, and the relative physical abilities of the victim and the defendant are
relevant considerations for determining the reasonableness of a defendant’s belief.
Fla. Std. Jury Instr. (Crim.) 3.6(f); Spencer v. State, 419 So. 3d 654, 658 (Fla. 4th
13
DCA 2025). The defendant’s knowledge that the victim possesses a weapon—or
usually possesses a weapon—supports a reasonable belief that using deadly force is
necessary. See Spencer, 419 So. 3d at 659; Brown v. State, 454 So. 2d 596, 599 (Fla.
5th DCA 1984), superseded by statute on other grounds, Ch. 2005-27, § 2, Laws of
Fla. The defendant need not see a victim’s weapon before acting in self-defense.
Mobley, 132 So. 3d at 1165.
A defendant who is lawfully present in a dwelling or other place has no duty
to retreat or “defuse the threat posed.” Spencer, 419 So. 3d at 659. A defendant has
no duty to retreat even if retreating is prudent. Mobley, 132 So. 3d at 1166 (“It may
have been more prudent for Mobley and [his companion] to skitter to their cars and
hightail it out of there when they had the chance; however, as even the State
concedes and the court below recognized, Mobley and [his companion] had every
right to be where they were[.]”). Section 776.012 also imposes no warning
requirement. Id. at 1165. A defendant need not announce that he is armed nor warn
before using his weapon. Id.; 419 So. 3d at 659.
III. Discussion
In this appeal, Gainvors limits his challenge to the trial court’s denial of his
pretrial immunity motion. We apply a mixed standard of review to an order denying
a claim of self-defense immunity. We review the trial court’s legal conclusions and
application of the law to the facts de novo, while reviewing its factual findings for
14
competent, substantial evidence. Moore v. State, 426 So. 3d 906, 909 (Fla. 6th DCA
2025).
Section 776.032, Florida Statutes (2023), provides immunity from criminal
prosecution to a person whose use or threatened use of force is justified under
sections 776.012, 776.013, or 776.031. § 776.032(1), Fla. Stat. (2023). At a pretrial
immunity hearing “once a prima facie claim of self-defense immunity from criminal
prosecution has been raised by the defendant” the burden shifts to the State to
overcome that immunity by clear and convincing evidence. § 776.032(4), Fla. Stat.
(2023). Thus, the defendant’s initial burden is only to raise a prima facie claim of
self-defense immunity; once that burden is satisfied, the State must prove by clear
and convincing evidence that the defendant did not act in self-defense. Boston v.
State, 326 So. 3d 673, 675 (Fla. 2021); Moore, 426 So. 3d at 909.
If the State fails to carry that burden, the defendant’s prima facie claim stands,
and the defendant is immune from further prosecution. Moore, 426 So. 3d at 910.
If immunity is denied, however, the defendant may still assert self-defense at trial,
where the State bears the higher burden of disproving self-defense beyond a
reasonable doubt. Boston, 326 So. 3d at 680.
According to the uncontested evidence presented at the pretrial immunity
hearing, a reasonable person in Gainvors’s position would have believed that the use
of deadly force was necessary to prevent imminent death, great bodily harm, or the
commission of a forcible felony. As the trial court conceded in its written order
15
denying Gainvors’s pretrial immunity motion, “the Ring doorbell video camera . . .
captured the entire incident.” Although we would generally defer to the trial court’s
factual findings if supported by substantial competent evidence, because we have
equal access to the video footage reviewed by the trial court, we would “apply a less
deferential standard to the trial court’s factual findings to the extent they are based
on the video.” Thomas v. State, 351 So. 3d 197, 204 (Fla. 1st DCA 2022) (citing
State v. Hineline, 159 So. 3d 293, 296 (Fla. 1st DCA 2015) and Black v. State, 59
So. 3d 340, 344 (Fla. 4th DCA 2011)).
The State stipulated at the immunity hearing that Gainvors’s sworn motion
established a prima facia case. In that motion, Gainvors attested that Hanson
routinely armed himself with a knife and that he had threatened to use it. The State’s
sole eyewitness at the hearing also confirmed that Hanson “quite often” carried a
concealed knife clipped to his belt. Gainvors further attested that Hanson had
recently threatened to kill him and his family, that he had a physically attacked
Gainvors before, and that he had a reputation for violence. None of these facts were
refuted by the State at the pretrial immunity hearing.
As to the timeframe of the shooting, Gainvors asserted in his motion that in
response to Hanson screaming expletives and concerns Hanson would advance
against his home, Gainvors armed himself and stepped out of his house to try to deter
the threat. As reflected in the video, Hanson opted to advance despite Gainvors’s
armed presence at the threshold of his home. Gainvors also alleged that Hanson
16
advanced so closely that he was “alarmed he could not retreat back into the home
before [Hanson] would actually reach him if [Hanson] chose to advance.” Again,
the State did not refute this.
The trial court’s denial of Gainvors’s pretrial immunity motion was not
supported by substantial competent evidence considering: (i) the nature of Hanson’s
threatening behavior and aggressive words and actions; (ii) the history of violence;
(iii) Hanson’s reputation for carrying a knife; and (iv) Hanson’s charge toward
Gainvors’s front door despite knowing Gainvors was armed. Based on the unrefuted
facts presented, Gainvors had a reasonable belief that deadly force was necessary to
prevent imminent death or great bodily harm to himself, his wife, or his minor child.
The Fourth District recently addressed a similar scenario, ultimately granting
the defendant’s writ of prohibition after his pretrial immunity motion had been
denied below. In Spencer, the victim had previously threatened the defendant and
some of his co-workers, and the victim had a reputation for carrying a weapon. 419
So. 3d at 657. One day, the victim drove his vehicle to the defendant’s place of
work, exited his vehicle, and began advancing upon the defendant yelling threats at
him. Id. at 656–57. The defendant initially attempted to retreat, but as the victim
continued to get closer to him, the defendant ultimately pulled out his concealed
weapon and shot the victim. Id. at 657. In granting the defendant’s writ of
prohibition and directing the trial court to discharge the defendant from prosecution,
the Fourth District opined as follows:
17
The trial court must determine “whether, based on circumstances
as they appeared to the defendant when he or she acted, a reasonable
and prudent person situated in the same circumstances and knowing
what the defendant knew would have used the same force as did the
defendant.” Mobley v. State, 132 So. 3d 1160, 1164–65 (Fla. 3d DCA
2014) (emphasis added). Relevant considerations include the victim’s
reputation of being a violent or dangerous person, any prior threats by
the victim against the defendant, and the relative physical abilities of
the victim and the defendant. Fla. Std. Jury Instr. (Crim.) 3.6(f).
Here, the evidence does not support the trial court’s conclusion
that the State met its burden of proof. The defendant’s testimony was
largely unrefuted, and the trial court found the defendant to be credible.
The trial court specifically credited the defendant’s testimony that the
victim got out of his car and aggressively approached the defendant
after repeatedly threatening to “whoop his ass.”
Rather than simply open the gate and drive into the lot, the victim
got out of his car and aggressively approached the defendant, yelling at
him. The victim had threatened the defendant before and was known
to carry a gun. As the victim approached, he moved his hand near his
front pocket. Fearing for his life, the defendant drew his gun and shot
the victim.
Id. at 658–59 (emphasis in original). In similar fashion, the unfettered aggression
by Hanson against Gainvors, coupled with Hanson’s prior threats and physical
attacks against Gainvors and his reputation for carrying a weapon, support a finding
that Gainvors reasonably feared imminent death or great bodily harm and was
justified in his use of deadly force.
Along with the evidence supporting Gainvors’s right to employ deadly force
in defense of himself and others, it appears from portions of the trial court’s written
order denying the pretrial immunity motion that the wrong standard was applied.
While the trial court’s order cites the correct statutory language, the trial court
18
summarized the stand-your-ground immunity standard (citing Mobley) as follows:
“In other words, did the Defendant have no other choice but to use his firearm that
day?” (Emphasis added). The trial court further stated, “Defendant’s actions were
not the actions of a reasonable and prudent person given the circumstances on that
day.” The trial court’s summary of the law runs contrary to both the statutory
language and the holding of Mobley. As discussed above, section 776.012(2)
permits the use of deadly force if a person “reasonably believes that using or
threatening to use such force is necessary to prevent imminent death or great bodily
harm to himself . . . or another or to prevent the imminent commission of a forcible
felony.” Even if it may be more “prudent” to run or retreat, the statute imposes no
such duty. See Mobley, 132 So. 3d at 1166 (“It may have been more prudent for
Mobley and [his companion] to skitter to their cars and hightail it out of there when
they had the chance; however, as even the State concedes and the court below
recognized, Mobley and [his companion] had every right to be where they were[.]”
(emphasis added)). That the danger may be avoided by retreating does not deprive
a defendant of the right to stand his or her ground. See Navarro v. State, 190 So. 3d
212, 215 (Fla. 4th DCA 2016) (holding that improper jury instructions negated the
defendant’s self-defense argument by requiring the belief that danger “could be
avoided only” by using deadly force).
Next, the trial court emphasizes that Hanson had “nothing in his hands when
he approached the Defendant.” Problematically, this conclusion does not refute the
19
fact that Hanson was known to carry a knife. If someone is “known to carry” a knife
or gun, that does not mean they are seen at all times with one in their hands. It
means they are known to have one on their person. Hanson was wearing shorts with
pockets. There was no way of knowing whether one of those pockets contained a
knife. As the State’s own witness testified at the pretrial immunity hearing, Hanson
was known to carry a concealed knife. Not surprisingly, a sheathed knife was found
on Hanson’s belt after his death. That Gainvors could not actually see a knife in
Hanson’s hand did not refute Gainvors’s reasonable belief that Hanson was known
to carry a knife and that Hanson posed a significant threat to Gainvors and his family.
See also Spencer, 419 So. 3d at 658–59 (finding defendant’s use of deadly force was
reasonable despite there being no visible weapon in victim’s hands); Mobley, 132
So. 3d. at 1166 (“[T]he issue for determination is not whether Mobley knew a
weapon was possible or whether he actually saw one, but whether a reasonably
prudent person in those same circumstances and with the same knowledge would
have used the force Mobley used.”).
Finally, the trial court held that Gainvors’s “tactical position” and “silence”
refuted Gainvors’s claim that he was in imminent fear of harm from Hanson: “The
evidence does not support Defendant’s claim that he was in imminent fear of Mr.
Hanson. In fact, Defendant’s tactical position in pointing the gun, as well as his
silence, belies this argument.” (Emphasis added). This conclusion is erroneous on
two fronts. If taking a “tactical position” of pointing a gun at someone before
20
shooting negates a stand-your-ground defense, the general citizenry would be left
with the only remaining option: Not aiming before shooting. There is no statutory
requirement to show true fear of imminent harm by shooting without first aiming.
“[I]t is not our role to act as the [l]egislature or to add words to the statute which do
not exist.” Kidwell Grp., LLC v. Am. Integrity Ins. Co. of Fla., 347 So. 3d 501, 506
(Fla. 2d DCA 2022) (quoting State v. Estime, 259 So. 3d 884, 889 (Fla. 4th DCA
2018)). As to the trial court’s conclusion that Gainvors’s silence should again be
counted as evidence refuting his reasonable fear of imminent harm to self or others,
“[t]he statute contains no warning requirement.” Mobley, 132 So. 3d at 1160 (citing
T.P. v. State, 117 So. 3d 864, 866 (Fla. 4th DCA 2013)).
The trial court’s final point, that Gainvors’s silence somehow defeats his
stand-your-ground defense, raises a concerning dilemma based on the current
statutory scheme and caselaw applying the same. What if Gainvors verbally warned
Hanson as the trial court felt should have been done? Let’s say Gainvors, with his
weapon pointed at Hanson—which was the only thing that halted Hanson’s advance
against him—told Hanson, “Get off my property or I will shoot you.” If the trial
court were correct in concluding that Gainvors was no longer in imminent fear of
death or great bodily harm at the time Gainvors raised his gun and Hanson
momentarily halted his advance, then by continuing to point the gun at Hanson and
ordering Hanson to leave his property (i.e., issuing a verbal warning) Gainvors
would be committing aggravated assault with a deadly weapon with no viable stand21
your-ground defense. See § 784.021, Fla. Stat. (2023); Little v. State, 302 So. 3d
396, 404 (Fla. 4th DCA 2020) (“When a person points a loaded firearm at another
person and issues a command to do something, this is generally an implied
declaration that the failure to abide by the command will result in the discharge of
the firearm, i.e., deadly force.” (citations and internal footnote omitted)); cf. Burns
v. State, 361 So. 3d 372 (Fla. 4th DCA 2023) (defendant who brandished firearm
and advised individuals to leave his property was entitled to stand-your-ground
immunity because his weapon was not pointed at the individuals at the time the order
was given — “mere display of a gun is not deadly force as a matter of law” (quoting
Cunningham v. State, 159 So. 3d 275, 277 (Fla. 4th DCA 2015) (emphasis in
original)). If Hanson’s momentary stall brought about by Gainvors raising his
weapon somehow negated Gainvors’s reasonable fear of imminent harm, then
Gainvors’s only option in that instance would have been to lower his weapon.
Having carefully reviewed the subject video, if Gainvors had lowered his weapon at
that point, great bodily harm or death would have likely resulted to Gainvors or his
family based on Hanson’s clear aggressions up to that point.
Gainvors has solely argued in this appeal that the trial court erred at the pretrial
immunity stage when it found the State established by clear and convincing evidence
that he did not act in self-defense. Under Boston v. State, such error at the pretrial
immunity stage, in which the State only bears a burden of clear and convincing
evidence, is deemed harmless once a jury finds the defendant guilty beyond a
22
reasonable doubt. 326 So. 3d 673, 677 (Fla. 2021) (“[T]he First District properly
concluded that the trial court’s failure to require the State to overcome Boston’s
immunity claim with clear and convincing evidence was cured when ‘the State
overcame Boston’s self-defense claim by meeting the heavier trial burden of proof
beyond a reasonable doubt.’” (quoting Boston v. State, 296 So. 3d 580, 583 84 (Fla.
1st DCA 2020))). In Boston, the defendant was charged with aggravated battery and
moved to dismiss arguing that he was entitled to immunity because he acted in selfdefense. 326 So. 3d at 675. At the pretrial immunity hearing, the trial court
erroneously required the defendant to establish self-defense by a preponderance of
the evidence instead of requiring the State to rebut the defendant’s self-defense claim
by clear and convincing evidence. Id. at 675–76. The trial court rejected the
defendant’s immunity claim, and the jury later convicted the defendant of
misdemeanor battery. Id. Due to the erroneously applied burden of proof, the
defendant sought a new pretrial immunity hearing. Id. at 676. Boston rejected the
defendant’s request for a new pretrial immunity hearing and held that “[w]hen the
State proves beyond a reasonable doubt that the defendant did not act in selfdefense,” the trial court’s erroneous application of an incorrect burden at the pretrial
immunity hearing is cured. Id. at 677. Thus, when the State satisfies the heavier
‘beyond a reasonable doubt’ standard at trial, error by the trial court at the pretrial
23
immunity hearing is rendered harmless. Id. 6 Because Gainvors’s challenge in this
appeal is limited to the sufficiency of evidence offered at the pretrial immunity
hearing, under Boston, we must affirm.
James Gainvors, Avon Park, pro se.
James Uthmeier, Attorney General, Tallahassee, and Sonia C. Lawson, Assistant Attorney General, Tampa, for Appellee.
6
As explained in Boston, the appropriate vehicle to challenge a pretrial immunity hearing ruling is a petition for writ of prohibition. 326 So. 3d at 677. Gainvors filed a petition for writ of prohibition with this Court shortly after the trial court’s written order denying his immunity motion, around one month before his trial. His petition did not mention the imminency of his trial date, nor did Gainvors file a motion for stay of trial in the lower court pending this Court’s ruling on his petition. Before ruling on the petition, and after the jury verdict was rendered, this Court issued an order to show cause permitting Gainvors to argue why his petition would not be rendered moot by the jury’s verdict. Gainvors did not respond to the order to show cause, and this Court then dismissed his petition for writ of prohibition.
24