Florida/Georgia Personal Injury & Workers Compensation

...e Dale Surber, Assistant Attorney General, West Palm Beach, FL, for Respondent. LEWIS, C.J. We have for review a decision of a district court of appeal in which the following question was certified by the court to be of great public importance: DOES SECTION 776.013, FLORIDA STATUTES (2005), APPLY TO CASES PENDING AT THE TIME THE STATUTE BECAME EFFECTIVE? State v....

...What little appears in the record before us is that Smiley shot the victim who was an occupant of Smiley's cab. Smiley appears to be making a claim of self-defense. Just before trial, Smiley filed a motion to permit the use of two special jury instructions based upon the newly enacted section 776.013....

...After entering an order to show cause why relief sought by the State should not be granted, the Fourth District received argument from both parties. The Fourth District also granted the motion of the State to stay the trial court proceedings. The Fourth District granted the State's petition, holding that section 776.013 of the Florida Statutes (2005) does not apply to conduct committed prior to its effective date of October 1, 2005; therefore, Smiley was not entitled to the requested jury *333 instructions....

...der "the castle doctrine." See id. at 1001-02. [1] The Fourth District determined that "[n]othing in the legislation indicates an intent to apply the abrogation of the common law retroactively." Id. at 1003. The Fourth District further reasoned that section 776.013 made a substantive change to section 776.012, Florida Statutes (2004), and it therefore would be a violation of article X, section 9 of the Florida Constitution for section 776.013 to be given retroactive application. See id. The court further concluded that section 776.013 is not remedial, which would permit retroactive application, because the statute created a new right of "self-defense without the duty to retreat." Id....

...Smiley filed a notice to invoke discretionary jurisdiction with this Court on June 21, 2006, and we granted review. See Smiley v. State, 937 So.2d 123 (Fla.2006) (table). ANALYSIS The proper standard of review in this case is de novo review. The issue of whether section 776.013 is applicable to cases pending at the time of its enactment is a pure question of law....

...ce. New v. State, 807 So.2d 52, 53 (Fla.2001) (citing Witt, 387 So.2d at 931). Contrary to the argument of Smiley, the decision of this Court in Weiand v. State, 732 So.2d 1044 (Fla.1999), is not applicable to resolve the current question of whether section 776.013 should apply to pending cases, because Weiand determined the retroactivity of a change in the decisional law....

...eat bodily harm from a co-occupant, would apply to all cases that were pending but not to convictions that were final). Conversely, a different analysis must be applied to determine the question of whether a change in the statutory law, such as with section 776.013, should receive retroactive application....

...Desjardins, 493 So.2d 1027 (Fla.1986)). Finally, a statute that achieves a "remedial purpose by creating substantive new rights or imposing new legal burdens" is treated as a substantive change in the law. Arrow Air, Inc., 645 So.2d at 424. The primary effect of section 776.013 is to specifically incorporate "no duty to retreat" for certain situations when deadly force can immediately occur without needing to first retreat....

...d his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony. § 776.013(3), Florida Stat. (2005) (emphasis added). To aid the determination of whether a person had a reasonable belief that self-defense was needed or a forcible felony was intended, section 776.013 also created the following two presumptions: [3] (1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or l...

...rring or had occurred. . . . . (4) A person who unlawfully and by force enters or attempts to enter a person's dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence. § 776.013(1),(4), Fla....

.... . . "). The duty to retreat in Florida is a product of the common law. See Weiand, 732 So.2d at 1049 (citing Hedges v. State, 172 So.2d 824, 827 (Fla.1965)). Although the duty to retreat has been previously qualified in Florida through case law, section 776.013 establishes a "no duty to retreat" rule in a broad context that had not previously existed....

...ense if the deadly force was necessary to prevent death or great bodily harm. See Pell v. State, 97 Fla. 650, 122 So. 110, 116 (1929). Although such examples of the right to use deadly force without first retreating existed prior to the enactment of section 776.013, the broad context of this legislation (i.e....

...hat there is no duty to retreat before using deadly force in numerous other situations that the case law had not previously established. For example, the specific right of Smiley to use deadly force in self-defense in his taxi did not exist prior to section 776.013....

...954 (Fla.1981) with Baker v. State, 506 So.2d 1056, 1059 (Fla. 2d DCA 1987) (holding that the castle doctrine does not extend to automobiles). Moreover, this Court previously held that a new jury instruction on self-defense, which was not related to section 776.013 but did come from a statutory change in the law, was substantive....

...Bar re Standard Jury Instructions Criminal Cases, 477 So.2d 985, 986 (Fla.1985) (discussing that the new jury instruction for the justifiable use of force in resisting arrest under section 776.051(c), Florida Statutes (1985), was of a "substantive nature") (quoting committee report). Finally, section 776.013 is analogous to section 775.051, which abrogated the affirmative defense of voluntary intoxication. Although section 776.013 created a new affirmative defense for situations in which one may use deadly force without first retreating, rather than *336 abrogating an affirmative defense as occurred with section 775.051, the classification by this Court of section 775.051 as a substantive change in the law is analogous and applicable in the analysis of section 776.013....

...section 775.051 constitutes a substantive change in the law). Whether a statute creates or abrogates an affirmative defense, both statutes significantly change the affirmative defenses available to defendants. For all these reasons, we conclude that section 776.013 is a substantive change in the statutory law. III. Metropolitan Dade County Test Based upon this determination that section 776.013 constitutes a substantive change in the statutory law, a presumption of prospective application must therefore underlie the further analysis of this legislation....

...If the legislation clearly expresses an intent that it apply retroactively, then the second inquiry is whether retroactive application is constitutionally permissible. Id. (citations omitted) (emphasis added). Due to the clear constitutional prohibition against retroactive application of section 776.013, which is more fully described below, we do not address the first inquiry of legislative intent as to whether the presumption against retroactive application is rebutted here....

...Article X, section 9 of the Florida Constitution has the following language: Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed. (Emphasis added.) As the State correctly argues, this constitutional provision precludes section 776.013 from applying retroactively to pending cases. [4] The key determination is that section 776.013 qualifies as *337 a "criminal statute." With regard to article X, section 9, the term "criminal statute" is defined in a broad context....

...slature as an organized body relating to crime or its punishment . . . defining crime, treating of its nature, or providing for its punishment . . . [or] deal[ing] in any way with crime or its punishment." Id., 109 So. at 591. In the instant matter, section 776.013 qualifies as a "criminal statute," because it has a direct impact on the prosecution of the offense of "murder" in Florida....

...parties could still "be prosecuted and punished in the same manner") (quoting Ex parte Pells, 28 Fla. 67, 9 So. 833, 834-35 (1891)). Unlike the defendant in Watts, Smiley could not be prosecuted in the same manner because retroactive application of section 776.013 would provide him with a new affirmative defense to the first-degree murder charge (i.e., he had no duty to retreat before he used deadly force in self-defense in his taxi). [5] Therefore, article X, section 9 of the Florida Constitution makes it constitutionally impermissible for section 776.013 to receive retroactive application. CONCLUSION For the foregoing reasons, we answer the certified question in the negative and hold that section 776.013 does not apply to the charge against Smiley, which is based on conduct that allegedly occurred prior to the October 1, 2005, effective date of this legislation....

...State, 412 So.2d 332, 338 (Fla.1982). This gives the trial judge notice of the alleged error, so that it may be corrected at an early stage. See F.B., 852 So.2d at 229. In the instant matter, the trial level proceedings were stayed to permit the issue of whether section 776.013 applies to pending cases to be decided at the appellate level....

...judge never had an opportunity to correct the error due to the failure to object, which allowed a flawed trial to continue to proceed uninterrupted. Instead, the State did object to the proposed jury instruction requested by Smiley that incorporated section 776.013....

...otice of the alleged error with regard to article X, section 9, which allowed that court to consider this issue in its decision. See Smiley, 927 So.2d at 1003. [5] It should be noted that despite creating a new affirmative defense in this situation, section 776.013 did not alter the definition or elements of the murder statute under section 782.01, Florida Statutes (2006). See State v. Cohen, 568 So.2d 49, 51-52 (Fla.1990) ("An affirmative defense does not concern itself with the elements of the offense at all; it concedes them."). Notwithstanding this distinction, retroactive application of section 776.013 would directly affect the ability to successfully prosecute Smiley under section 782.01.

...it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another] or to prevent the commission of a forcible felony. Presumption of Fear (dwelling, residence, or occupied vehicle). Give if applicable. See exceptions in § 776.013(2), Fla....

...In a much-publicized move, the Florida Legislature enacted in 2005 what has been popularly ( e.g. http://en.wikipedia.org/wiki/Castle_Doctrine_# Stand-your-ground) referred to as the "Stand Your Ground" law. Ch.2005-27, § 5, at 202, Laws of Fla. This law, as codified, provides that a person who uses force as permitted in section 776.013 is justified in using such force and is immune from criminal prosecution as well as civil action for the use of such force. § 776.032, Fla. Stat. (2006). Section 776.013, Florida Statutes (2006), states: (1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause...

force as permitted in [section] 776.012, [section] 776.013, or [section] 776.031 is justified in using

...The Florida Bar News on December 1, 2003. However, after those proposed changes were submitted to the Court, the 2005 Florida Legislature changed the law of self-defense in Florida by amending portions of chapter 776, Florida Statutes, and creating section 776.013, Florida Statutes (2005)....

...it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another] or to prevent the commission of a forcible felony. Presumption of Fear (dwelling, residence, or occupied vehicle). Give if applicable. See exceptions in § 776.013(2), Fla....

communications. 4 . In 1996, 15 C.F.R. § 776.13(a) provided in relevant part as follows:

154, 156 (Fla. 4th DCA 2007)) (“... [U]nder section 776.013, a person who is attacked is allowed to stand

...r she reasonably believes that 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 felony; or (2) Under those circumstances permitted pursuant to s. 776.013. § 776.012, Fla. Stat. (2006). Section 776.013(3), Florida's so-called "Stand Your Ground" law, in turn provides: A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right t...

...d his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony. § 776.013(3), Fla. Stat. (2006). During the charge conference, the defense requested that the "Stand Your Ground" instruction, based on section 776.013(3), not be given....

...led firearm. Thus, the "Stand Your Ground" instruction did not apply to him. The trial court denied the defendant's request and ultimately gave the jury the standard jury instruction, which is consistent with the "Stand Your Ground" law set forth in section 776.013(3)....

...the standard instruction did not adequately cover the theory of defense; and (3) the special instruction was a correct statement of the law and not misleading or confusing. Stephens v. State, 787 So.2d 747, 756 (Fla.2001). Prior to the enactment of section 776.013, Florida common law provided that, with the notable exception of the "castle doctrine," a person could not resort to deadly force without first using every reasonable means within his or her power to avoid the danger, including retreat "to the wall." See Weiand v....

...However, even under the common law rule, where a defendant has retreated to the wall or retreat would be futile, deadly force is justifiable. See Thompson v. State, 552 So.2d 264, 266 (Fla. 2d DCA 1989); State v. Rivera, 719 So.2d 335, 338 (Fla. 5th DCA 1998). The legislature's creation of section 776.013 in 2005 "expanded the right of self-defense and abolished the common law duty to retreat when a person uses deadly force in self-defense to prevent imminent great bodily harm or death." McWhorter v. State, 971 So.2d 154, 156 (Fla. 4th DCA 2007). Section 776.013 thus altered the law so that now there is "no duty to retreat" under a broad array of circumstances. Smiley v. State, 966 So.2d 330, 335 (Fla.2007). In other words, section 776.013 created a new affirmative defense for situations in which one may use deadly force without first retreating. Id. For offenses occurring after the effective date of section 776.013, several cases have found fundamental error where the jury received the pre-2005 standard instruction on the justifiable use of deadly force....

...Under the unique circumstances of this case, the trial court erred in instructing the jury as to the "Stand Your Ground" law over the defendant's objection, without also instructing the jury as to the scope of the duty to retreat in situations where the defendant was engaged in unlawful activity. The plain language of section 776.013(3) provides that the "no duty to retreat" rule applies only where a person "is not engaged in an unlawful activity." We need not decide the exact scope of the statutory term "unlawful activity" under section 776.013(3)....

...Corp., 675 So.2d 577, 581 (Fla.1996) ("A court will presume that such a statute was not intended to alter the common law other than by what was clearly and plainly specified in the statute."). But even the common law duty to retreat is not absolute—the common law before section 776.013 recognized that there was no duty to retreat where a defendant had retreated to the wall or retreat would be futile....

...We therefore reverse and remand the case for a new trial. The Jury Instructions We also reverse on alternative grounds. The defendant argues that the court erred in its instruction to the jury on the duty to retreat because the law changed immediately prior to the time of the offense. See § 776.013(3), Fla....

...To warrant a reversal, the instruction must be so prejudicial that a miscarriage of justice would result if not corrected. Johnson v. State, 747 So.2d 436, 438 (Fla. 4th DCA 1999) (quoting Lewis v. State, 693 So.2d 1055, 1058 (Fla. 4th DCA 1997)). Section 776.013, Florida Statutes (2005) became effective on October 1, 2005....

...or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony. *1194 § 776.013(3)....

...active application of statutes applies only to statutes that effect a substantive change in the law; it has no application to changes in the law that are merely procedural or remedial. E.g., State v. Smiley, 927 So.2d 1000, 1003 (Fla. 4th DCA 2006) (section 776.013, Florida Statutes (2005), eliminating the duty to retreat before using deadly force to prevent the commission of a forcible felony represents a substantive, rather than a procedural, change in the law and, therefore, cannot be applied...

...d his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony. § 776.013(3), Fla....

of force would not have been permitted in section 776.013(3). The State notes that in order for a person’s

electronic communications. 4 In 1996, 15 C.F.R. § 776.13(a) provided in relevant part as follows:

bodily harm to himself or herself or another....” § 776.013(1). Chapter 2005-27 amended two existing statutes:

...4th DCA 2008), clarifying that the "no duty to retreat" rule applies to situations where the defendant was not engaged in unlawful conduct beyond that for which he asserts justification. In addition, instruction 3.6(f) is also amended to include the statutory exceptions in section 776.013(2), Florida Statutes (2008), which may preclude giving the instruction on justifiable use of deadly force....

...and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real. No duty to retreat. § 776.013(3), Fla....

...prevent the commission of a forcible felony. Define applicable forcible felony from list in § 776.08, Fla. Stat. that defendant alleges victim was about to commit. Presumption of Fear (dwelling, residence, or occupied vehicle). Give if applicable. § 776.013(2)(a)-(d), Fla. Stat. See exceptions in § 776.013(2), Fla....

...other person against that person's will from] that [dwelling] [residence] [occupied vehicle] and the defendant had reason to believe that had occurred. The defendant had no duty to retreat under such circumstances. Exceptions to Presumption of Fear. § 776.013(2)(a)-(d), Fla....

...plicable law or the person using the force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer. If requested, give definition of "law enforcement officer" from § 943.10(14), Fla. Stat., § 776.013(4), Fla....

...A person who unlawfully and by force enters or attempts to enter another's [dwelling] [residence] [occupied vehicle] is presumed to be doing so with the *645 intent to commit an unlawful act involving force or violence. Definitions. Give if applicable. § 776.013(5), Fla....

...Prior to trial, McDaniel filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(b). He claimed in his motion that he is immune from criminal prosecution pursuant to section 776.032(1), Florida Statutes (2007), because he has a valid defense of justifiable use of force under section 776.013, commonly known as the castle doctrine, and section 776.031, the defense of others statute....

...3.190(c)(4) should not be applied, the State proceeded on the theory that the motion to dismiss should not be granted because there are material disputed facts. Section 776.032(1) provides that "[a] person who uses force as permitted in s. 776.012, s. 776.013, or s....

...THE TRIAL COURT USED THE CORRECT JURY INSTRUCTION ON JUSTIFIABLE USE OF FORCE Mr. Gonzalez first argues in this appeal that although he committed this crime in 2003, the trial court was required to instruct the jury on the justifiable use of force in accordance with the 2005 amendments to section 776.013, Florida Statutes (2005). These amendments limited a person's duty to retreat when confronted with force. See ch. 2005-27, §§ 1, 5, Laws of Fla. (effective Oct. 1, 2005). While this appeal was pending, however, the Florida Supreme Court resolved this issue, holding that section 776.013(3) does not apply to events occurring before its enactment....

...Several statutes set out the parameters as to what force is allowed under particular circumstances. Section 776.032(1), Florida Statutes (2006), states: 776.032 Immunity from criminal prosecution and civil action for justifiable use of force. — (1) A person who uses force as permitted in s. 776.012, s. 776.013, or s....

...r she reasonably believes that 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 felony; or (2) Under those circumstances permitted pursuant to s. 776.013. In pertinent part, section 776.013, Florida Statutes (2006), states: 776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm....

...to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony. "`Residence' means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest." § 776.013(5)(b), Fla. Stat. The evidence indicated that Appellant and Ernest Lamar both occupied the residence where he was killed. Before the enactment of sections 776.032 and 776.013, Florida Statutes, in 2005, "a person was justified in using deadly force when the person was attacked in his or her *163 home and `reasonably believed deadly force was necessary to prevent "imminent death or great bodily harm to himself or h...

...to prevent the imminent commission of a forcible felony."'" State v. Heckman, 2007 WL 4270594, *2, ___ So.2d ___, ___ (Fla. 2d DCA Dec.7, 2007) (quoting Note, Florida Legislation-The Controversy Over Florida's New "Stand Your Ground" Law-Fla. Stat. § 776.013 (2005), 33 Fla. St. U.L. Rev. 351, 354 (Fall 2005)). "The creation of section 776.013 eliminated the burden of proving that the defender had a reasonable belief that deadly force was necessary by providing a conclusive presumption of such." Heckman, 2007 WL 4270594 at *2, ___ So.2d at ___....

...The court also found that there were disputed issues of fact which precluded granting of pretrial immunity. ANALYSIS In Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008), this court addressed Florida's "Stand Your Ground" law, enacted by the Florida Legislature in 2005 and codified at sections 776.013 through 776.032, Florida Statutes. Section 776.032(1) states that a person using force as permitted in section 776.013, with certain exceptions not applicable here, is immune from criminal prosecution and civil action. Section 776.013(1) provides: (1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily...

...State, 492 So.2d 1344 (Fla. 1st DCA 1986); Diaz v. State, 387 So.2d 978 (Fla. 3d DCA 1980). CONCLUSION Petitioner was aware that Harper, the victim, had unlawfully and forcibly entered the vehicle when he was shot. Hair was therefore authorized by section 776.013(1), Florida Statutes, to use defensive force intended or likely to cause death or great bodily harm and was immune from prosecution for that action under 776.032(1)....

instruction on the “Stand Your Ground” law, section 776.013(3), Florida Statutes (2011). The jury found

pursuant to s. 776.013. (Emphasis added). Section 776.013 is titled “Home protection; use of deadly force;

a prima facie case of self-defense. Under section 776.013(3), a person is justified in using deadly force

the other’s imminent use of unlawful force. Section 776.013, titled “Home protection; use of deadly force;

...*1001 Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for petitioner. Carey Haughwout, Public Defender, West Palm Beach, for respondent. WARNER, J. The Legislature enacted section 776.013, Florida Statutes, effective October 1, 2005, to provide for an expanded right of self-defense for individuals....

...dated the effective date of the statute. The state petitions for writ of certiorari, contending that the court departed from the essential requirements of law in that the act's provisions cannot be applied retroactively. We agree with the state that section 776.013 cannot be applied to crimes committed prior to its effective date....

...What little appears in the record before us is that Smiley shot the victim who was an occupant of Smiley's cab. Smiley appears to be making a claim of self-defense. Just before trial, Smiley filed a motion to permit the use of two special jury instructions based upon the newly enacted section 776.013....

...of a forcible felony. A person who unlawfully and by force enters or attempts to enter a person's occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence. The state objected, contending that section 776.013, being a substantive change in the law, should not be applied retroactively to incidents occurring prior to its passage....

...not apply the statute to pending cases, absent clear legislative intent favoring retroactive application. Id. at 499 (citations omitted). Here, it is clear that the statute attaches new legal consequences to events completed before the enactment of section 776.013 and amendment to section 776.012....

...Thus, it is not remedial in the sense that it may be applied retroactively to events occurring prior to its enactment. For these reasons, we grant the petition and quash the order of the trial court. Smiley is not entitled to jury instructions based upon the expanded right of self-defense contained in sections 776.012 and 776.013....

...Opinion cites a dictionary Internet cite that gives a definition of the word "party") Kitchens (appeal from final order modifying alimony); Peterson (writ of prohibition to review denial of motion to dismiss based on statutory immunity Internet citation to Wikipedia, which established that section 776.013, Florida Statutes, is popularly known as the "Stand your Ground Law." Whether this was in fact the popular nickname for section 776.013 apparently was not in dispute, and whether its usage was stipulated to by the parties cannot be discerned.); and Graham (appeal from a final life sentence without parole)....

prevent the commission of a forcible felony. § 776.013(3), Fla. Stat. (2007). Such a person is immune

give the definition of dwelling set forth in section 776.013, Florida Statutes (2010), which defines dwelling

though the instruction tracks the language in section 776.013(3), Florida Statutes, word-for-word,5 the instruction

pursuant to s. 776.013. Id. (emphasis supplied). Section 776.013 creates a presumption of reasonable fear of

confronted with the use of force, as set forth in section 776.013(3), Florida Statutes. What is problematic was

...t himself (without withdrawing from physical contact in good faith). Both parts of the instruction are a correct statement of the law. Indeed, the relevant language of the instruction comes directly from the applicable provisions of Chapter 776. See § 776.013(3), Fla....

Stat. (2010) (emphasis supplied). Next, section 776.013, “Home protection; use of deadly force; presumption

section upon which the instruction is based. Section 776.013, Florida Statutes (2012), provides as follows:

...State, 798 So.2d 809, 810 (Fla. 4th DCA 2001). And it improperly introduces Mitchell's self-serving statements which are otherwise inadmissible hearsay. See Lott v. State, 695 So.2d 1239, 1243 (Fla. 1997). Finally, Mitchell sought to have the jury instructed in accordance with section 776.013, effective October 1, 2005, which provides for an expanded right of self-defense: [1] A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat...

...or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony. *252 § 776.013(3), Fla....

...The court denied the request, relying on State v. Smiley, 927 So.2d 1000 (Fla. 4th DCA 2006), where this court held that the expanded right of self-defense could not be applied retroactively to crimes committed prior to its passage. Our supreme court has approved Smiley and held that section 776.013 does not apply to cases pending at the time the statute became effective....

...l statement after denial of his motion to suppress; the exclusion from evidence of the remainder of his custodial statement under the rule of completeness (section 90.108, Florida Statutes); and the trial court's decision not to instruct the jury on section 776.013, Florida Statutes, effective October 1, 2005, concerning self-defense....

prevent the commission of a forcible felony.” § 776.013(3), Fla. Stat. (2007). Additionally, the person

instruction based, on the 2012 version of section 776.013, Florida Statutes, which, in pertinent part

uses force as permitted in .section 776.012, section 776.013, or section 776.031. Here, Eady raised his

...we should affirm. When the shooting occurred, Barnes had a duty to retreat in most situations before he could employ deadly force. Until October 2005, Florida required a person to retreat in most situations before deadly force could be employed. See § 776.013, Fla....

upon the newly enacted statute, at the time section 776.013, Florida Statutes (2005). Those proposed instructions

forcible felony. § 776.012, Fla. Stat. (2009). Section 776.013(3) stated a person not engaged in unlawful

...West Palm Beach, for petitioner. Carey Haughwout, Public Defender, West Palm Beach, for respondent. *1028 On Motion for Rehearing WARNER, J. We deny rehearing but grant respondent's motion to certify the issue as one of great public importance. DOES SECTION 776.013, FLORIDA STATUTES (2005), APPLY TO CASES PENDING AT THE TIME THE STATUTE BECAME EFFECTIVE? FARMER and KLEIN, JJ., concur.

...Bretherick filed a motion to dismiss under Florida Rule of Criminal Procedure 3.190(b), claiming immunity from prosecution under section 776.032, Florida Statutes, Florida’s “Stand Your Ground” law. The Stand Your Ground law provides that when a person uses force as permitted by sections 776.012, 776.013, or 776.031, Florida Statutes (2011), the person is entitled to immunity from criminal prosecution....

...Section 776.032 & This Court’s Decision in Dennis Florida’s Stand Your Ground law provides in pertinent part as follows: Immunity from criminal prosecution and civil action for justifiable use of force.— (1) A person who uses force as permitted in s. 776.012, s. 776.013, or s....

...necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or (2) Under those circumstances permitted pursuant to s. 776.013. Section 776.013, Florida Statutes (2011), addresses circumstances in which force is used against a person unlawfully and forcefully entering, or who had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle. Section 776....

...criminal prosecution, but instead provided immunity only to those whose use of force was justified, as specified by statute. See § 776.032, Fla. Stat. (providing that the use of force is justified only when used as permitted by sections 776.012, 776.013, or 776.031)....

the “unlawful activity” prohibition found in section 776.013(3) does not negate immunity under section 776

...2d DCA 2006), review denied, 950 So.2d 414 (Fla.2007). As the trial court recognized, the issue of whether the defendant acted in justifiable self-defense is generally one for the jury. Fowler, 921 So.2d at 711. The parties and the court agreed that section 776.013(3), Florida Statutes (2005), applies to this case. Section 776.013(3) provides as follows: A person who is not engaged in an unlawful activity and who is attacked in any other place [i.e., other than a dwelling, residence, or vehicle] where he or she has a right to be has no duty to retreat and has t...

...Appellant, Jeremiah McWhorter, appeals his conviction for battery, a lesser-included offense of aggravated battery. We reverse because the trial court erred in instructing the jury on self-defense. The instructions given by the court were inconsistent with the new statute, § 776.013, Fla....

...Appellant contends, however, that the trial court incorrectly instructed the jury on self-defense by telling them that appellant had to try to "avoid the danger" before using force. According to appellant, this instruction negated his defense. The 2005 Florida Legislature's creation of section 776.013, Florida Statutes (2005), expanded the right of self-defense and abolished the common law duty to retreat when a person uses deadly force in self-defense to prevent imminent great bodily harm or death. Smiley, 927 So.2d at 1002. Section 776.013(3), Florida Statutes, states that: [a] person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony. § 776.013(3), Fla. Stat. (2005). Section 776.013 altered the law so that now there is "no duty to retreat" under a broad array of circumstances....

...The "necessity to avoid" language would lead the jury to believe that the appellant had to use "every reasonable means within his power to avoid the danger" before he could resort to the use of force likely to cause great bodily harm. However, under section 776.013, a person who is attacked is allowed to stand his or her ground and "meet force with force." It appears that the new law places no duty on the person to avoid or retreat from danger, so long as that person is not engaged in an unlawful activity and is located in a place where he or she has a right to be. § 776.013(3), Fla....

...We have considered appellant's second point on appeal regarding impeachment of a witness by a prior inconsistent statement, but find this argument to be without merit. Reversed and Remanded. FARMER, J., and DAVIDSON, LISA, Associate Judge, concur. NOTES [1] State v. Smiley, 927 So.2d 1000 (Fla. 4th DCA 2006), held that section 776.013, Fla....

pursuant to Florida’s Stand Your Ground law, section 776.013, Florida Statutes (2009). Because the defendant

...Stieh testified that he acted in self-defense and in defense of Flaherty. Flaherty's testimony corroborated Stieh's testimony, as did the testimony of two of the State's witnesses. Stieh presented a prima facie case of self-defense. The applicable self-defense statute is section 776.013(3), Florida Statutes (2007), which states: A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her groun...

...forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle. § 776.013(1)(a). Here, Stieh had a right to be in the hotel room as he had lawfully rented the room for the night. The room qualified as a dwelling or residence for purposes of section 776.013....

...[1] Only one witness, the victim, testified that he did not forcibly enter the hotel room in search of the wallets. Further, three of the witnesses testified the victim forcibly removed the appellant from the room at one point during the altercation. Thus, it appears the presumption in section 776.013(1)(a) applies to Stieh....

...The State failed to present evidence legally sufficient to overcome Stieh's theory of self-defense. In fact, two of the State's witnesses corroborated Stieh's theory by testifying that immediately after the stabbing, Stieh told them he was acting in defense of Flaherty. Defense of another is permitted under section 776.013(3)....

...ely minor and did not rebut or otherwise foreclose Stieh's theory of innocence. Therefore, the trial court should have granted Stieh's motion for judgment of acquittal. Reversed and remanded for discharge. NORTHCUTT and DAVIS, JJ., Concur. NOTES [1] Section 776.013(5)(a) defines a dwelling as "a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night." A residence is defined as "a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest." § 776.013(5)(b).

makes it constitutionally impermissible for section 776.013 to receive retroactive application.”).

...3d 594, 595 (Fla. 2d DCA 2014). II. Motion to Dismiss Under the Stand Your Ground Law In his motion to dismiss, Harrell argued that he was entitled to immunity from prosecution under the Stand Your Ground law as codified in sections 776.032 and 776.013(3), Florida Statutes (2009)....

...We are not persuaded that this reasoning would lead the supreme court to rethink its decision in Dennis, which squarely decided the issue. Therefore, we decline to certify the question. Harrell also argues that the trial court applied the incorrect standard because section 776.013(3) does not expressly require imminent harm. Harrell cites to this court's recent decision in Little v. State, 111 So. 3d 214, 221 (Fla. 2d DCA 2013), to support his argument. In Little, this court did note the omission of the term "imminent" from section 776.013(3). Little, 111 So. 3d at 221. But this court also concluded that section 776.013(3) only applied if the defendant was not engaged in unlawful activity. And being a felon in possession of a firearm constitutes unlawful activity. Little, 111 So. 3d at 222. Thus, section 776.013(3) does not apply in this case. III....

*806or her from obtaining the immunity under section 776.013. We agree. In Little, the defendant was ambushed

addressing a defendant’s duty to retreat under section 776.013(3), *413 Florida Statutes (2015)

s. 776.013. § 776.012, Fla. Stat. (2009). Section 776.013, Florida Statutes, generally governs use of

counsel understood the distinction between section 776.013 and 776.012 and sought immunity from prosecution

...at 1017. Additionally, the defendant “point[ed] out that there is a comma after the phrase ‘including deadly force’ in the standard jury instruction . . . but not in the statutory section upon which the instruction is based.” Id. The Second District agreed, and stated: Section 776.013, Florida Statutes (2012), provides as follows: (3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has...

...for manslaughter and possession of a firearm by a convicted felon. Under both points raised on appeal, Waters urges fundamental error occurred in the giving of select standard jury instructions bearing on his claim of self-defense as provided in section 776.013(3), Florida Statutes (2012), Florida’s “Stand Your Ground” law....

...The trial court reasoned that the defendant’s crime of possession of a firearm by a convicted felon did not preclude him from seeking dismissal under the Stand Your Ground law. 95 So. 3d at 434–35. The defendant’s motion to dismiss relied on section 776.013(3), Florida Statutes (2009), which provides: A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to s...

...her non-forcible felonies which occur at the same time as the felony that leads to the self- defense claim. The trial court ruled that the defendant had established by a preponderance of the evidence that he was justified in using deadly force under section 776.013. The court concluded that, pursuant to section 776.013(1)(a)–(b), there was a presumption that the defendant’s use of deadly force was reasonable because the shooting occurred on his front porch. The State appealed from the dismissal of the aggravated battery with a firearm charge, and we reversed....

...t a person attacked is justified in using deadly force to defend themselves and has no duty to retreat if “[h]e or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.” Unlike section 776.013, section 776.012(1) does not mention that the protections of the statute are unavailable to a person engaged in an unlawful activity....

...firearm from claiming self-defense immunity “under the Stand Your Ground law.” Hill, 95 So. 3d at 435. Hill now seeks review of the trial court’s denial of this second motion to dismiss. Because we now clarify 1The motion to dismiss that was originally granted cited only section 776.013(3), Florida Statutes (2009), and did not refer to section 776.012(1). 3 that the holding in State v. Hill was indeed applicable only to the section of the Stand Your Ground law which was at issue in that case—section 776.013(3)—we grant the petition. Analysis Justifiable use of force is governed by the provisions of Chapter 776, Florida Statutes (2009)....

...hat 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 felony; or (2) Under those circumstances permitted pursuant to s. 776.013. (emphasis added)....

...The addition of the words “and does not have a duty to retreat” to section 776.012 had the effect of abrogating any common law duty to retreat before using deadly force outside the home under the circumstances indicated therein. The Stand Your Ground amendments also created new section 776.013, Florida Statutes (titled “Home protection; use of deadly force; presumption of fear of death or great bodily harm”)....

...has forcibly entered the person’s home or occupied vehicle. Importantly, this newly-created presumption does not apply to one engaged in unlawful 4 activity or where the dwelling, residence, or vehicle is being used for unlawful activity. § 776.013(2)(c), Fla....

...ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony. § 776.013(3), Fla....

...if not identical, circumstances. Section 776.032, perhaps the heart of the Stand Your Ground amendments, provides immunity from criminal prosecution and civil action when the use of force is permissible under section 776.012 (defense of person), section 776.013 (home protection or where person is standing in a place they have the right to be), and section 776.031 (defense of others). In granting the original motion to dismiss, the trial court erroneously concluded that Hill was entitled to the presumption of section 776.013(1) and immunity under section 776.032, despite the fact that he was a felon in possession of an illegal firearm which was used in response to his attack. We maintain our conclusion in State v. Hill that possession of a firearm by a convicted felon constitutes “unlawful activity” which makes Hill ineligible to receive the benefit of self-defense immunity from prosecution derived from section 776.013(3)....

...State, 111 So. 3d 214, 221 (Fla. 2d DCA 2013) (holding that a person engaged in an unlawful activity, such as possession of an illegal firearm by a felon, would not be entitled to claim immunity under section 776.032(1) based on the use of force as permitted in section 776.013(3)). On the other hand, Hill’s present motion for immunity travels under section 776.012(1) (use of force in defense of person), which contains no language precluding the justifiable use of deadly force where the person claiming self-defense is engaged in an unlawful activity....

...4th DCA 2013), this court has already expressed agreement with the Second District’s extensive legal analysis in Little v. State, concluding that the plain language of 776.032 can be understood as granting immunity to a person who qualifies under either 776.012(1) or 776.013(3) and that the “unlawful activity” exception does not exist under section 776.012(1). Thus, we recede from our statement in Hill that a felon in possession of a firearm cannot claim immunity “under the Stand Your Ground law” because the statement unintentionally went beyond the statutory provision at hand—section 776.013(3).2 The interplay of section 776.012 and section 776.013(3) Section 776.012 provides that a person is justified in using force, including deadly force, and has no duty to retreat if he or she reasonably believes that 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 felony.” § 776.012(1). Section 776.013(3) provides that a person who is attacked in any place where he or she has the right to be, and is not engaged in an unlawful activity, has no duty to retreat and may stand his or her ground and meet force with force, including deadly...

...necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.” The two sections appear to overlap to the extent that anyone claiming self-defense under the language of section 776.013(3) could also reasonably claim the defense under the language of section 776.012(1) as there appears to be little difference between a reasonable belief that the defensive force is necessary “to prevent imminent death or great bodily harm” (section 776.012(1) (emphasis added)), and a reasonable belief that the force is necessary to “prevent death or great bodily harm” (section 776.013(3)). Thus, the State argues that we should not read these statutes so as to make the “unlawful activity” limitation contained in section 776.013(3) meaningless and the statutory scheme contradictory....

...Had this been the actual intent, then the legislature could have easily accomplished this by including a simple statement to this effect in section 776.032 or in section 776.012. We agree with Judge Northcutt that any ambiguity created by contradictory language in sections 776.012(1) and 776.013(3) requires that these provisions of the criminal code be strictly construed most favorably to the accused....

...under section 776.012(1), or from seeking immunity from prosecution pursuant to section 776.032. The holding in State v. Hill was applicable 7 to the specific provisions of the Stand Your Ground law at issue in that case, namely section 776.013(3).3 We quash the trial court’s order which denied Hill’s second motion to dismiss and remand for further proceedings consistent with this opinion....

...of Hill in Bragdon v. State, 123 So. 3d 654 (Fla. 4th DCA 2013) (certifying conflict with Little), petition for review granted, No. SC13-2083 (Fla. July 2, 2014). To the extent that the petitioner there may have relied on section 776.012 instead of section 776.013(3), Bragdon may need to be remanded for further proceedings. 8 

fact triggered a statutory presumption under section 776.013(l)(a), Florida Statutes (2012), that his fear

...f the maximum penalty for the crime. Reversed for new trial on charge of aggravated battery. WARNER and GROSS, JJ., concur. NOTES [1] The events in question took place in May 2004 — which was before the amendments to section 773.012 and adoption of section 776.013 effective in 2005.

...The State seeks review of the trial court's order granting David Heckman's motion to dismiss the information that charged Heckman with aggravated battery. The State argues that the trial court erred in determining that Heckman's actions were immune from prosecution under sections 776.013 and 776.032, Florida Statutes (2005)....

...Heckman then fired his revolver twice, hitting Carroll once in the thigh. The State filed an information charging Heckman with one count of aggravated battery. Heckman filed a motion to dismiss, alleging that his actions were immune from prosecution under sections 776.013 and 776.032(1)....

...This court conducts a de novo review of an order granting the defendant's motion to dismiss a criminal information. State v. Perez, 952 So.2d 611, 612 (Fla. 2d DCA 2007). The trial court granted Heckman's motion to dismiss based on its finding that Heckman was immune from criminal prosecution under sections 776.013 and 776.032(1). Section 776.032(1) provides immunity from criminal prosecution for the use of force permitted under section 776.013. Section 776.013 provides that: *1006 (1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or grea...

...en Carroll was walking away from Heckman's garage toward his truck. Heckman argues that immunity applies because Carroll had threatened to break his jaw, then unlawfully entered Heckman's garage and vandalized Heckman's vehicle. Sections 776.032 and 776.013 were created by chapter 2005-27, section 1, Laws of Florida....

...hat deadly force was necessary to prevent imminent death or great bodily harm to himself or herself or another or the commission of a forcible felony." Note, Florida Legislation—The Controversy Over Florida's New "Stand Your Ground" Law—Fla. Stat. § 776.013 (2005), 33 Fla. St. U.L.Rev. 351, 354 (Fall 2005). The creation of section 776.013 eliminated the burden of proving that the defender had a reasonable belief that deadly force was necessary by providing a conclusive presumption of such....

...Fla. S. Comm. on Judiciary, CS for SB 436 (2005) Staff Analysis 5-6 (Feb. 25, 2005) (on file with comm.). The creation of section 776.032 provided, for the first time, for immunity from criminal prosecution for persons who act in self-defense under section 776.013. Under section 776.013, the person against whom the deadly force was used must have already unlawfully and forcibly entered the dwelling or must be in the process of unlawfully and forcibly entering. "Dwelling" is defined as "a building or conveyance of any kind, including any attached porch ... which has a roof over it... and is designed to be occupied by people lodging therein at night." § 776.013(5)(a)....

...Carroll was retreating from the garage to his vehicle, which he had almost reached. Thus, the facts before the court at the hearing on the motion to dismiss did not establish that Heckman was entitled to immunity under section 776.032 for the use of force permitted under section 776.013....

or Armed Robbery. (Emphasis added.) However section 776.013, Florida Statutes (2010), provides: (3) A person

property constituted “unlawful activity” under section 776.013(3). Defense counsel argued that such a determination

pursuant to s. 776.013. (emphasis added). Section 776.013, Florida Statutes (2010) (amended 2014), states:

...a Statute section 776.032.” The trial court denied the motion to dismiss. The State then requested the trial court to determine whether the defendant’s possession of a firearm on post office property constituted “unlawful activity” under section 776.013(3). Defense counsel argued that such a determination was unnecessary because the motion to dismiss was based on section 776.012, and not 776.013....

...See id. The State asks us to review that portion of the order in which the trial court determined that the defendant’s possession of a firearm on post office property did not constitute “unlawful activity” pursuant to section 3 776.013(3), Florida Statutes (2009).2 The defendant has maintained all along that such a determination was unnecessary because the defense motion relied upon section 776.012 and not 776.013....

...h 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 felony; or (2) Under those circumstances permitted pursuant to s. 776.013. (emphasis added)....

...is in a place where he or she has a right to be.” § 776.012(2), Fla. Stat. (2014) (emphasis added); see Hill v. State, No. 4D13-3672 (Fla. 4th DCA July 16, 2014) (recognizing the recent amendments). 4  Section 776.013, Fla....

...]he person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity . . .”; and (d) the person against whom the force is used is a law enforcement officer. § 776.013(2)(a)–(d), Fla....

...ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony. § 776.013(3), Fla....

...rcates the line between justifiable use of force in defense of self and others and the presumption that applies under the castle doctrine. As the Second District explained in Little v. State, 111 So. 3d 214, 219 (Fla. 2d DCA 2013), sections 776.012, 776.013, and 776.032 provide alternative forms of immunity. We do not agree that there is a conflict between the provisions in sections 776.012(1) and 776.013(3). Section 776.013(3) provides for the justifiable use of deadly force by a law-abiding person outside of the “castle,” but it does not preclude persons who are engaged in an unlawful activity from using deadly force in self-defense when otherwise permitted. In fact, the Stand Your Ground law expressly amended section 776.012 to provide that the use of deadly force is justified under the circumstances set forth in both sections 776.012(1) and 776.013. . . . Section 776.013(3) applies when a person is (1) not engaged in an unlawful activity and (2) attacked in any place outside the “castle” as long as (3) he or she has a right to be there. A person who does not meet these three requirements would look to section 776.012(1) to determine whether the use of deadly force was justified. The presumptions in sections 776.013(1) and (4) apply only when a person is attacked in the “castle.” And the presumption in section 776.013(1) does not apply if the person was engaged in an unlawful activity. See § 776.013(2)(c). Id. at 221 (emphasis in original). We concur with the Second District’s analysis. The defendant never sought immunity under section 776.013, and it was unnecessary for the trial court to answer whether the defendant was engaged in unlawful activity under section 776.013(3)....

give the instruction, stating, “I think that [section] 776.013.was meant for non-residents entering into

without retreating, under certain circumstances. Section 776.013(3), Florida Statutes (2013) permitted the use

Petitioner did not show any of the circumstances in section 776.013(2) that create a presumption of fear of death

defendant not be engaged in unlawful activity, section 776.013(3), a subsection governing the use of force

(Fla. 4th DCA 2011) (“The plain language of section 776.013(3) provides that the ‘no duty to retreat’ rule

prevent the commission of a forcible felony. § 776.013(3), Fla. Stat. (2006) (emphasis added). . We

complained of jury instruction was based on section 776.013, and read: If the defendant

of death or great bodily harm, pursuant to section 776.013(1), Florida Statutes (2014). We accept Marty’s

...himself or herself or another or to prevent the imminent commission of a forcible felony . . . . Section 776.012 does not contain any requirement that the person claiming protection under the statute not be engaged in “unlawful activity,”2 unlike section 776.013(3), Florida Statutes (2012), which provides: A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the rig...

...This court reversed upon finding fundamental error, because the defendant “was entitled to the protection of the Stand Your Ground law” under “section 776.012(1), which does not include language on ‘unlawful activity,’ [and] is separate from section 776.013(3).” Id....

...4th DCA 2014) (holding that a felon in possession of a firearm could still rely upon Stand Your Ground under section 776.012, because that section had “no language precluding the justifiable use of deadly force where the person claiming self-defense is engaged in an unlawful activity” as compared to section 776.013(3)); State v....

...to determine whether the use of deadly force was justified”); Little v. State, 111 So. 3d 214, 222 (Fla. 2d DCA 2013) (holding that because the defendant “was a felon in illegal possession of a firearm, his use of force did not fall within the protections of section 776.013,” but that did not preclude him claiming immunity under section 776.012). We find that the trial court’s instruction to the jury constitutes fundamental error....

776.012, Fla. Stat. (2010). To that end, section 776.013(3) of the Stand Your Ground law stated:

possession. § 776.031(1) (emphasis added); see also § 776.013(5)(a) (defining "dwelling"). Section

proposal to limit the forcible felony language of section 776.013(1), Florida Statutes (2018), by adding the

self-defense, which incorporated the language in section 776.013(3), Florida Statutes (2012), concerning circumstances

CIKLIN, JJ„ concur. . The defense was based on section 776.013, Florida Statutes (2011). . The pretrial

of deadly force, as established by section 776.013(1), Florida Statutes (2013) During the

importance as we did on rehearing in Smiley: DOES SECTION 776.013, FLORIDA STATUTES (2005), APPLY TO CASES PENDING

...Helton’s only defense at trial was that he acted in self-defense, as permitted by the “stand your ground” law.1 Accordingly, the trial court gave the standard instructions 2 on the justifiable use of force and the circumstances under which 1 See §776.013(3), Fla....

dwelling. . . ."6 In addition, I note that section 776.013(5)(b), Florida Statutes, defines "Residence"

...defendant who was seeking an acquittal based on justifiable use of deadly force. The justifiable use of deadly force instruction given by the trial court is standard jury instruction 3.6(f), which incorporates, in relevant part, sections 776.012, 776.013, and 776.041 of the Florida Statutes. Section 776.012 is titled “Use of force in defense of person” and discusses general standards for self- defense. Section 776.013 discusses circumstances when a person has no duty to retreat, and includes subsection (3), the stand your ground provision....

...ch 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 felony; or (2) Under those circumstances permitted pursuant to s. 776.013. § 776.012, Fla....

...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. § 776.012, Fla. Stat. (2015). 11  The circumstances provided in section 776.013 initially address when the force is used against someone who unlawfully and forcibly enters a dwelling (subsections (1) and (2))....

...eet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony. § 776.013(3), Fla. Stat. (2010). Section 776.032 provides immunity from criminal prosecution and civil action for the justifiable use of force as permitted in sections 776.012, 776.013, and 776.031 (where the use of force is in defense of another). Section 776.041 explains that the protections provided in the preceding sections are not available to a person who: (1) Is attempting to commit, committi...

...16, 2014).3 As the majority correctly states, the instruction given in this case properly encompasses the statutes governing the use of force in defense of person (section 776.012), circumstances in which there is no duty to retreat (sections 776.012 and 776.013), and use of force by an aggressor (section 776.041)....

accordance with, among other provisions, section 776.013. Section 776.013(3), adopted as part of the Stand Your

...is portion of the instruction constituted fundamental error due to the comma that followed the phrase including deadly force. Talley v. State, 106 So. 3d 1015 (Fla. 2d DCA), review denied, 116 So. 3d 1263 (Fla. 2013). The comma is not included in section 776.013(3), Florida Statutes (2012), which provides for this claim of self-defense.1 The comma has the effect of "indicating that a defendant has no duty to retreat and has the right to stand his ground and meet force with force only if he...

...retreat and has the right to meet force with force." Sims v. State, 140 So. 3d 1000, 1005 n.7 (Fla. 1st DCA 2014) (finding instruction to be error but not reversible because Sims was not entitled to the self-defense theory provided by section 776.013(3) and prosecutor did not rely on the erroneous portion in closing). In Talley, the prosecutor relied on the erroneous interpretation by arguing in closing that "Even if you believe the fish tale that John Mullendore...

So.3d 5 , 13 (Fla. 2d DCA 2012) (citing § 776.013(3), Fla. Stat. (2008) ). However, the jury is

circumstances permitted pursuant to s. 776.013.”); § 776.013(3), Fla. Stat. (2012) (“A person who is not engaged

Compare § 776.012(1), Fla. Stat. (2020), and § 776.013(1)(a), Fla. Stat. (2020), with § 776.031(1), Fla

...outside the home under the circumstances indicated therein”); Little v. State, 111 So. 3d 214, 219-22 (Fla. 2d DCA 2013) (holding that a defendant engaged in an unlawful activity when he or she uses force cannot obtain immunity from prosecution based on section 776.013(3), but he or she can obtain immunity based on section 776.012(1))....

...Dorsey v. State, 74 So. 3d 521 (Fla. 4th DCA 2011) (Dorsey I); accord Morgan v. State, 127 So. 3d 708, 715-17 (Fla. 5th DCA 2013); Darling v. State, 81 So. 3d 575, 578-79 (Fla. 3d DCA 2012). However, the focus of Dorsey I was on the defense provided by section 776.013(3), not section 776.012(1)....

...an unlawful activity. However, as the cases cited above now make clear, it was irrelevant whether Appellant was engaged in an unlawful activity when he used the force at issue because his self-defense claim was based upon section 776.012(1), not section 776.013(3)....

...Below, the sole defense raised by appellant’s counsel was that appellant had the right to stand his ground and defend himself. However, the State argued to the jury that appellant provoked Investigator Trowbridge by stepping in * The confusing instructions are derived from sections 776.013(3), Florida Statutes (2012), and 776.041(2), Florida Statutes (2012), which state: A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to...

...eet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony. § 776.013(3), Fla....

to limit the forcible felony language of section 776.013(1), Florida Statutes (2018), by adding the

paragraph is included in the section under section 776.013(1), and provides as follows:

Smiley Smiley addressed whether section 776.013, Florida Statutes (2005), which was enacted

J., MARSTILLER and SWANSON, JJ., concur. See § 776.013(3), Fla. Stat. (2011). See Fla. Std. Jury Instr

...Shortly thereafter, Defendant shot three men and shot at a fourth man, wounding two and killing Feliciano. Defendant fled the scene and was later arrested. Analysis At trial, counsel and the trial judge discussed the possibility of giving an instruction on Defendant’s right to stand his ground. Focusing on section 776.013(3), a part of Florida’s Stand Your Ground law, counsel for the State argued Defendant was not entitled to a Stand Your Ground instruction because Defendant was engaged in “unlawful activity.”1 Defense counsel made a brief argume...

...The pre-2005 duty to retreat instruction was read to the jury: The fact that the Defendant was wrongly attacked cannot justify his use of force likely to cause death or great bodily harm if, by retreating, he could have avoided the need to use that force. 1 Section 776.013(3), Florida Statutes (2010), provides: (3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the rig...

...s Stand Your Ground law applies. See Little v. State, 111 So. 3d 214, 220 (Fla. 2d DCA 2013) (noting the Stand Your Ground law “eliminated the common law duty to retreat for persons justifiably using deadly force under either section 776.012(1) or 776.013”). Pursuant to section 776.012(1),2 Defendant was entitled to the 2 Section 776.012(1), Florida Statutes (2010), provides: A person is justified in using force, except deadly force, against another when and to th...

...that such conduct is necessary to defend himself or herself or 3 protection of the Stand Your Ground law. This is true because section 776.012(1), which does not include language on “unlawful activity,” is separate from section 776.013(3).3 See State v. Wonder, 128 So. 3d 867, 869 (Fla. 4th DCA 2013) (“The defendant has maintained all along that such a determination was unnecessary because the defense motion relied upon section 776.012 and not 776.013....

...outside the home under the circumstances indicated therein”); Little v. State, 111 So. 3d 214, 219-22 (Fla. 2d DCA 2013) (holding that a defendant engaged in an unlawful activity when he or she uses force cannot obtain immunity from prosecution based on section 776.013(3), but he or she can obtain immunity based on section 776.012(1))....

...Dorsey v. State, 74 So. 3d 521 (Fla. 4th DCA 2011) (Dorsey I); accord Morgan v. State, 127 So. 3d 708, 715-17 (Fla. 5th DCA 2013); Darling v. State, 81 So. 3d 575, 578-79 (Fla. 3d DCA 2012). However, the focus of Dorsey I was on the defense provided by section 776.013(3), not section 776.012(1)....

...an unlawful activity. However, as the cases cited above now make clear, it was irrelevant whether Appellant was engaged in an unlawful activity when he used the force at issue because his self-defense claim was based upon section 776.012(1), not section 776.013(3)....

" While that limitation may pertain to section 776.013(3), Mr. Dooley argues, there was no such limitation

force was permitted by section 776.012; by section 776.013; or by section 776.031. For all three avenues

105 So. 3d 5, 13 (Fla. 2d DCA 2012) (citing § 776.013(3), Fla. Stat. (2008)). However, the jury is