Ex. D4; Martin v. State, 257 So.3d 153 (Fla. 1st DCA 2018). Judge Wolf dissented, stating only that he “would grant the petition for ineffective assistance of appellate counsel,” and citing Andujar-Ruiz v. State, 205 So.3d 803 (Fla. 2d DCA 2016). Ex. D4.
Construing the identical text of section 776.012(1) set forth above, our court has held that this version of section 776.012(1) did not impose a duty to retreat upon a defendant engaged in unlawful activity. See Andujar–Ruiz v. State, 205 So.3d 803, 806–07 (Fla. 2d DCA 2016) (citing, inter alia, Little, 111 So.3d at 220–22 ; Dorsey v. State, 149 So.3d 144, 147 (Fla. 4th DCA 2014) ); cf. Miles v. State, 162 So.3d 169, 171–72 (Fla. 5th DCA 2015) ("[U]nder the prior Stand Your Ground law, a defendant could assert immunity under section 776.012 even if he or she was engaged in an unlawful act at the time."); Garrett v. State, 148 So.3d 466, 471 (Fla. 1st DCA 2014) ("The fact that [defendant] was a convicted felon in unlawful possession of a firearm did not apply to the jury's consideration of whether [defendant] had a duty to retreat under section 776.012(1)."); Hill v. State, 143 So.3d 981, 985–86 (Fla. 4th DCA 2014) (en banc) (holding that the application of section 776.012 is not limited to persons not engaged in unlawful activity); Pages v. Seliman–Tapia, 134 So.3d 536, 539 (Fla. 3d DCA 2014) (holding that defendant need not establish that he was not engaged in unlawful activity under section 776.012 ). Indeed, our court explained that an individual may a
The case of Andujar-Ruiz v. State, 205 So.3d 803 (Fla. 2d DCA 2016), presented by Rosario in support of previous claim, is instructive here. Andujar-Ruiz claimed his appellate counsel failed to raise on appeal the trial court's instruction of the 2014 amendment to “Stand Your Ground,” rather than the 2012 version, was fundamental error because his theory of selfdefense was based solely on Fla. Stat. § 776.012(1). Andujar-Ruiz, 205 So.3d at 805-06.
The district courts of appeal have universally agreed on this point: what distinguishes 776.012(1) from 776.013(3)—in particular, whether the defendant had been engaged in "unlawful activity" at the time of the threat—impacts the viability of a Stand Your Ground defense. See generally Andujar-Ruiz v. State, 205 So.3d 803, 806-07 (Fla. 2d DCA 2016) ("[B]ecause [Appellant] was entitled to raise a defense under section 776.012(1), the trial court's instruction that he had a duty to retreat if he was engaged in unlawful activity effectively deprived [Appellant] of his sole defense and constituted fundamental error."); Little, 111 So.3d at 219, 221 (concluding that immunity applies to a person who qualifies under either section 776.012(1) or 776.013(3), therefore the defendant's status as a felon in illegal possession of a firearm did not preclude a claim of immunity under section 776.012(1) and the trial court erred in denying motion to dismiss on the basis that the defendant was precluded from seeking immunity because he was engaged in an unlawful activity); McGriff v. State, 160 So.3d 167, 168 (Fla. 1st DCA 2015) (holding that the trial court abused its discretion when it instructed the jury that "if [Appellant] was engaged in an unlawful activity, [his] use of deadly force was not justified if he could have reasonably and safely
There are a number of decisions interpreting the earlier version of section 776.012 to allow a defendant to claim self-defense even where he was engaged in criminal activity at the time he resorted to deadly force. See, e.g., Garrett v. State, 148 So.3d 466 (Fla. 1st DCA 2014); Andujar-Ruiz v. State, 205 So.3d 803 (Fla. 2d DCA 2016).
Consequently, the state appellate court would likely have granted Hernandez relief on direct appeal. See also Andujar-Ruiz v. State, 205 So.3d 803, 807 (Fla. 2d DCA 2016) (“‘[W]here . . . a trial judge gives an instruction that is an incorrect statement of the law and necessarily misleading to the jury, and the effect of that instruction is to negate the defendant's only defense, it is fundamental error and highly prejudicial to the defendant.'”)
SeeBolduc v. State , 279 So. 3d 768, 771 (Fla. 2d DCA 2019) (reversing summary denial of postconviction motion and concluding that "[t]he instruction was plainly wrong, and in view of our controlling decision in Little [v. State , 111 So. 3d 214 (Fla. 2d DCA 2013) ], Mr. Bolduc has raised a facially sufficient claim that his trial counsel performed deficiently by failing to object"); see alsoEady v. State , 229 So. 3d 434, 438 (Fla. 2d DCA 2017) ("By charging the jury that Eady had a duty to retreat were it to determine Eady was engaged in unlawful activity, the trial court impermissibly negated Eady's sole defense at trial—self-defense."); Andujar-Ruiz v. State , 205 So. 3d 803, 807 (Fla. 2d DCA 2016) ("[T]he instruction to the jury that Andujar-Ruiz had a duty to retreat constituted fundamental error because it effectively deprived him of his self-defense claim, his sole defense to the charges."); Rios v. State , 143 So. 3d 1167, 1170 (Fla. 4th DCA 2014) (holding that the trial court's instruction on duty to retreat was fundamental error because the "jury instruction, which was not necessary because Defendant did not have a duty to retreat under Florida's Stand Your Ground law, effectively eliminated Defendant's sole affirmative defense"). As in Bolduc , "there is, at least at the summary stage of this postconviction proceeding, a reasonable probability that the erroneous instruction made the difference between a verdict of guilty and not guilty."
The instruction was plainly wrong, and in view of our controlling decision in Little, Mr. Bolduc has raised a facially sufficient claim that his trial counsel performed deficiently by failing to object.See Adams v. State, 727 So. 2d 997, 999 (Fla. 2d DCA 1999) ("We conclude that ignorance of the law on an issue that was pertinent to the overall presentation of Adams' defense meets the first prong of Strickland."); cf. Andujar-Ruiz v. State, 205 So. 3d 803, 806 (Fla. 2d DCA 2016) (holding that appellate counsel performed deficiently by failing to challenge inaccurate instruction based on 2014 amendments to section 776.012(1) when the earlier version of the statute applied and the error was fundamental).Little dealt with the words "unlawful activity" in section 776.013(3), while the amended version of section 776.012(1) uses the words "criminal activity," but we do not see a material difference in these expressions, at least as applicable to this case.
As to deficiency, he alleged that counsel was ineffective when the evidence existed to support such a defense. Cf.Andujar-Ruiz v. State , 205 So.3d 803 (Fla. 2d DCA 2016) (granting a petition for ineffective assistance of appellate counsel on the basis counsel was ineffective for failing to argue that fundamental error occurred when the trial court instructed the jury that the defendant had a duty to retreat if he was engaged in unlawful activity, which instruction deprived the appellant of a defense under section 776.012, Florida Statutes (2011) ). With regard to the prejudice prong, the appellant asserted that had counsel understood the distinction between section 776.013 and 776.012 and sought immunity from prosecution under section 776.012, the outcome would have been different.
I would grant the petition for ineffective assistance of appellate counsel. SeeAndujar-Ruiz v. State , 205 So.3d 803 (Fla. 2d DCA 2016) (holding appellate counsel was ineffective for failing to argue trial court's instruction on duty to retreat constituted fundamental error).