Appeals court upholds Stand Your Ground motion by Clark Mayers, who shot and killed one man and paralyzed another in the Apalachicola National Forest in March 2015.

A Georgia man, charged in a March 2015 shooting in the Apalachicola National Forest that left one man dead and another paralyzed for life, will likely go free, after a three-judge appeals court decided Monday to uphold his “Stand Your Ground” motion.

The three members of the 1st District Court of Appeals – Judges Ross Bilbrey, L. Clayton Roberts and Ross Makar – all agreed that the changes to the Stand Your Ground law enacted by the Florida legislature in 2017 should be applied retroactively to the 2015 shooting.

The changes to the law required prosecutors prove a defendant, by clear and convincing evidence, did not act justifiably in self-defense. Previously, defense attorneys had the burden of proving by the greater weight of the evidence that the defendant was justified in the use of deadly force.

In a 10-page March 2018 ruling, Circuit Judge Terry Lewis had found that Tallahassee attorney Richard H. Smith had not met the earlier burden of proof standard that Clark Mayers, 42, of Milledgeville, Georgia, had been justified in the use of deadly force against either Wesley “Dice” Jones, who was left a quadriplegic, or Jacob “Smiley” Cardwell, who was killed, at a Rainbow Family gathering.

But, Lewis went on to write, that if the amended statute were to apply retroactively, the state, as represented by Assistant State Attorney Jared Patterson, had not proved the shootings were not the result of the justifiable use of deadly force by Mayers.

The appeals court judges granted the appeal, by Tallahassee attorney Michael Ufferman, citing an earlier appeals court ruling that upheld the retroactive application of the law, which went into effect June 9, 2017.

Bilbrey noted in his opinion that the 3rd and 4th District Courts of Appeals “have set forther cogent arguments that the retroactive application of the amendment to the burden of proof would violate (the Florida Constiution).

“Ultimately, the Florida Supreme Copurt will have to determine which view is correct,” he wrote.

The appeals court ruling quashes Lewis’ decision to deny Mayers’ Stand Your Ground motion, and remands back to Judge Charles Dobson to discharge Mayers, who is wearing an ankle bracelet while he resides in Georgia awaiting trial.

In his finding, Lewis had written that the broadest outlines of the story appeared to be that an armed Mayers confronted Jones and Cardwell in the early morning hours, over their burning of a tire not far from the river, and that they backed him up to his trailer, at which time Mayers fired his gun, after being allegedly struck by a shovel wielded by Jones and a machete wielded by Caldwell.

“Both narratives, in my view, are internally inconsistent, and not supported by the other testimony or physical evidence,” Lewis wrote, noting that the most glaring contradiction in Jones’ testimony was the location of the incident, which he says was “maybe ten to fifteen feet away from the fire.

“The crime scene photos and the physical evidence, plus the other testimony shows that the shootings occurred some 60-75 feet away from the fire, right next to the defendant’s trailer,” wrote Lewis

Lewis noted that believed Mayers’ story had holes in it as well, referring to his testimony at the Feb. 23 Stand Your Ground hearing that he awoke earlier that evening after hearing a couple arguing outside of his trailer.

“Rather than simply opening the door or a window to call out to the couple, he gets dressed, complete with his keys, a flashlight that attaches to a band around his head and a loaded handgun, just to open the door and speak with this couple,” wrote the judge. “That made no sense to me. Then with this problem solved, he decides to use the bathroom nearby and takes his gun with him. He explains that this is because there are bears and alligators in the woods. That didn’t make sense to me either.

“What does make sense is that the defendant needed some explanation as to why he was walking around with a gun before his confrontation (with Jones and Strickland). Because, if Mayers went and retrieved his gun after Jones threw his camera in the fire, that would suggest he acted out of anger,” wrote Lewis. “It would suggest premeditation.”

The judge had also voiced skepticism regarding Mayers’ claim that Jones, who had the use of only one arm due to an injury sustained a few years prior, “punched him in the jaw and snatched the camera from his hands all in one motion.

“That doesn’t make sense either,” Lewis wrote.

In Lewis’ opinion, it is not essential to decide whether Mayers only shot Jones after he hit him in the face with a shovel, or whether he shot Cardwell only after the man came after him with a machete.

“(Mayers) was not justified in using deadly force because he was engaging in criminal activity at the time, specifically aggravated assault against Jones and Strickland,” the judge wrote. “And while it might have been foolish to do so, armed only with a small folding shovel against a pistol, Jones had the right to defend himself against the defendant.

“But, even accepting the defendant’s testimony that Cardwell came at him with a machete, that does not mean he was justified in using deadly force if, as I have found, the defendant had just shot Jones without legal justification,” Lewis wrote. “Cardwell had the right to defend himself and his friend, or anyone else in the vicinity from additional violence from Mayers.

“Admittedly, if someone is coming at you with a machete, it is understandable that you would shoot them to protect yourself from harm,” the judge wrote. “But a pre-condition to the lawful use of deadly force is that you are lawfully where you have a right to be and are not otherwise engaged in criminal activity.

“Pointing a gun at someone is an aggravated assault. Shooting them is at least aggravated battery,” Lewis wrote. “If you commit two violent felonies and appear capable of committing more violence, you don’t get to kill someone who tries to stop you, and then claim self-defense.”

Lewis had noted that the state’s burden of “clear and convincing evidence” must be precise, explicit, lacking in confusion, and “of such weight that it produces a firm belief or conviction without hesitation about the matter in issue.

“The evidence must be of sufficient weight to convince the trier of fact without hesitancy,” he wrote, in referencing the definition of his standard by the Florida Supreme Court.

“(A) jury is free to believe or disbelieve all or any part of the evidence, and reasonable people could disagree on what the evidence provide,” Lewis wrote. “But, I am the fact-finder in this proceeding and I just can’t say the evidence is clear and convincing (according to this definition).”