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...

...1996))). A Brief History of Florida's Stand Your Ground Law As background, the Stand Your Ground statute was first enacted in 2005. Ch. 05-27, § 4, at 200, Laws of Fla.; see also § 776.032, Fla. Stat. (2005) ("A person who uses force as permitted in [section] 776.012, [section] 776.013, or [section] 776.031 is justified in using such force and is immune from criminal prosecution ....

...criminal defendant in a pretrial rule 3.190(b) motion to dismiss. The trial court is then to determine whether, at first glance and assuming all facts as true, the alleged facts set forth in the motion support the elements of self-defense in either section 776.012, 776.013, or 776.031....

...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:

...is necessary to either prevent imminent death or great bodily harm to self or others or to prevent the imminent commission of a forcible felony. See § 776.032, Fla. Stat. (2013) (providing that a “person who uses force as permitted in s. 776.012, s. 776.013, or s....

...and does not have a duty to retreat if: (1) [h]e 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; or (2) [ujnder those circumstances permitted pursuant to s. 776.013”)....

...lony is “imminent,” the use of deadly force is justified. The statute contains no warning requirement. See T.P. v. State, 117 So.3d 864, 866 (Fla. 4th DCA 2013) (quoting McWhorter v. State, 971 So.2d 154, 156 (Fla. 4th DCA 2007)) (“... [U]nder 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....

...een applied, Mobley’s use of deadly force was justified, the motion to dismiss should have been granted. See Dennis v. State, 51 So.3d 456, 460 (Fla.2010) (confirming that, where a defendant claims immunity from prosecution under sections 776.012, 776.013 and 776.032, the court below must determine whether that defendant has shown by a preponderance of the evidence that the immunity attaches); Vino, 100 So.3d at 717 (“When a defendant invokes the statutory immunity, the trial court must hold...

...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....

...Propriety of the Denial of the Motion to Dismiss on the Merits The Stand Your Ground law is codified in chapter 776, Florida Statutes (2009). Section 776.032(1) grants criminal immunity to persons using force as permit *218 ted in sections 776.012, 776.013, or 776.031....

...State’s Tipsy Coachman Argument The State argues that regardless of whether Little established that his use of deadly force was permitted in section 776.012(1), he was not entitled to immunity under section 776.032(1) because his use of force would not have been permitted in section 776.013(3). The State notes that in order for a person’s use of deadly force to *219 be permitted in section 776.013(3), the person must not be engaged in an unlawful activity....

...Because Little was a felon in illegal possession of a firearm, the State submits that he was engaged in an unlawful activity and cannot obtain immunity under any of these statutory provisions. Section 776.032(1) provides, in pertinent part, “A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force.... ” Because section 776.032(1) grants criminal immunity to persons using force as permitted in section 776.012, section 776.013, or section 776.031, it should be construed to allow a defendant to claim immunity based on the use of force permitted in any of these provisions....

...‘and.’ ”). Despite the disjunctive language in section 776.032(1), the State asserts that the legislature did not intend to provide immunity based on the use of force as permitted in section 776.012(1) because section 776.012(1) conflicts with section 776.013(3). According to the State, both sections 776.012(1) and 776.013(3) permit the use of deadly force based on a reasonable belief such force is necessary to prevent imminent death or great bodily harm or the commission of a felony. The State argues that section 776.013(3) limits the justifiable use of deadly force to persons who are not engaged in illegal activity and who are in a place they have a legal right to be. The State asserts that section 776.012(1) cannot provide a separate basis for immunity because it would provide immunity for a person engaged in an unlawful activity and thus render section . 776.013(3) meaningless....

...or object be construed together to harmonize the statutes and to give effect to the Legislature’s intent.’ ” Id. (quoting Fla. Dep’t of State v. Martin, 916 So.2d 763, 768 (Fla.2005)). We conclude that the plain language of sections 776.012, 776.013, and 776.032 can be understood as granting immunity to a person who qualifies under either section 776.012(1) or 776.013(3). To arrive at this conclusion, we will examine the provisions in sections 776.012 and 776.013 in pari materia to determine whether the legislature intended for each section to provide a separate basis for immunity under section 776.032(1)....

...There was an exception to the duty to retreat for a person claiming self-defense in his or her own residence; that exception was part of the “castle doctrine.” 3 Id. In 2005, the legislature enacted the Stand Your Ground law which amended sections 776.012 and .031 and created sections 776.013 and .032....

...self or herself or another or to prevent the imminent commission of a forcible felony.” § 776.012(1). But the Stand Your Ground law added language permitting the justifiable use of deadly force “[u]nder those circumstances permitted pursuant to s. 776.013.” § 776.012(2). It also eliminated the common law duty to retreat for persons justifiably using deadly force under either section 776.012(1) or 776.013....

...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. As for section 776.013, it is entitled “Home protection; use of deadly force; presumption of fear of death or great bodily harm.” 4 Subsections (1), (2), (4), and (5) of section 776.013 expand the “castle” to include a dwelling, residence, or occupied vehicle....

...These subsections all work together to provide for presumptions that make it easier for a person in the “castle” to establish the justifiable use of deadly force. Subsection (1) sets forth a presumption of “a reasonable fear of imminent peril of death or great bodily harm.” § 776.013(1). Subsection (2) sets forth four circumstances in which the presumption in subsection (1) does not apply, including when “[t]he person who uses defensive force is engaged in an unlawful activity.” § 776.013(2)(c)....

...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.” § 776.018(4). And subsection (5) defines “dwelling,” “residence,” and “vehicle.” § 776.013(5). Subsection (3), which is the subsection on which the State focuses, applies to “[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.” § 776.013(3)....

...f “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.” Id. 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. Nor do we agree that construing section 776.012(1) as a distinct statute permitting the justifiable use of deadly force would render section 776.013(3) meaningless. Instead, the burden of proof and the entitlement to the various presumptions to assist in meeting that burden varies depending upon which statute applies. 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). The requirements under sections 776.012(1) and 776.013(3) are not identical. A person proceeding under section 776.013(3) would have to prove that he or she reasonably believed the use of deadly force was “necessary ......

...or to prevent the imminent commission of a forcible felony.” (Emphasis added.) As for criminal immunity, a person engaged in an unlawful activity 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). But section 776.013(3) provides only one means of obtaining immunity under section 776.032(1). Section 776.012(1) provides another means of obtaining immunity for individuals who would not qualify for immunity under section 776.013(3)....

...And section 776.032(1) expressly provides for immunity based on the use of force as permitted in section 776.012. In summary, section 776.032(1) provides for immunity from criminal prosecution for persons using force as permitted in section 776.012, section 776.013, or *222 section 776.031. Because Little was a felon in illegal possession of a firearm, his use of force did not fall within the protections of section 776.013, and therefore, he could not obtain immunity under that statute....

...ed in an unlawful activity as a felon in illegal possession of a firearm. Id. at 435 . The Fourth District reversed. Id. at 435 . The court concluded that the crime of possession of a firearm by a convicted felon qualified as unlawful activity under section 776.013(3). And the court explained that under section 776.013(3) the defendant was not entitled to immunity because he was engaged in an unlawful activity....

...The Fourth District has not addressed whether a defendant would be entitled to immunity based on the use of force as permitted in section 776.012(1). As we have already explained, section 776.032(1) provides for immunity based on the use of force as permitted in three separate statutory provisions: section 776.012, section 776.013, or section 776.031. As pertains to the circumstances here, even though Little’s use of force was not permitted in section 776.013(3), it was permitted in section 776.012(1)....

...s protection, and even deadly force if there exist reasonable and factual grounds to believe that unless so used, a felony would be committed. Weiand, 732 So.2d at 1049 n. 5 (quoting Falco v. State, 407 So.2d 203, 208 (Fla.1981)). . The full text of section 776.013 is attached to this opinion as Appendix A.

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

...Ribas was over and he was removed from the zone of imminent danger, the putative forcible felony was over. At this point any right that Defendant had to use deadly force in defense of Mr. Ribas terminated as to the forcible felony. [Citation omitted.] Florida Statute sections 776.012, 776.013, and 776.031, when read together, allow for the use of deadly force only to prevent the commission of a forcible felony or for self-defense or defense of another, when the person reasonably believes it is necessary to prevent death or great bodily harm....

...nt imminent death, great bodily harm, or the commission of a “forcible felony,” and the person using such force “is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another....” § 776.013(1). Chapter 2005-27 amended two existing statutes: sections 776.012 and 776.031; and it created two new statutes: sections 776.013 and 776.032....

...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 [which permits use of defensive force intended or likely to cause death or great bodily harm in a dwelling, residence or occupied vehicle]. [ 1 ] Section 776.032 provides that a person using force as permitted by sections 776.012, 776.013 or 776.031, “is immune from criminal prosecution and civil action for the use of such force” subject to exceptions not applicable here....

...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)....

...duty to retreat for an individual engaged in an unlawful activity. Instead, without objection, the trial court instructed the jury on the forcible-felony exception to self defense and the standard jury instruction on the “Stand Your Ground” law, section 776.013(3), Florida Statutes (2011)....

...The State objected, arguing that the standard instructions were adequate. The trial court denied Morgan’s request, and instead, gave the standard jury instructions on the justifiable use of self defense. The court also gave the “Stand Your Ground” instruction consistent with section 776.013(3), Florida Statutes (2011), advising the jury: If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and mee...

...necessary to do so to prevent [ ] death or great bodily harm to himself or to prevent the commission of a forcible felony. See Fla. Std. Jury Instr. (Crim.) 3.6(f) (2011). There were no objections to the instructions as given. The plain language of section 776.013(3) provides that the “no duty to retreat” rule applies only when a person “is not engaged in an unlawful activity.” When, as in this case, it is undisputed that the defendant was engaged in unlawful activity at the time he cla...

...Corp., 675 So.2d 577, 581 (Fla.1996) (“A court will presume that [a statute in derogation of the common law] 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 when a defendant had retreated to the wall or retreat would be futile....

...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. (Emphasis added). Section 776.013 is titled “Home protection; use of deadly force; presumption of fear of death or great bodily harm.” Subsection (3) of this provision states: (3) A 'person who is not engaged in an unlawful activity and who is attacked in any othe...

...Section 776.012(1) provides that a person using deadly force in circumstances in which the perceived threat of death or great bodily harm is imminent does not have a duty to retreat. While Garrett acknowledges that a “duty to retreat” analysis would be necessary under section 776.013(3) because of his unlawful activity, he contends that sections 776.012 and 776.013 provide separate and distinct bases under which the justifiable use of deadly force may be asserted, so that the “unlawful activity” preclusion in the latter is irrelevant to the operation of the former....

...ough the person was engaged in unlawful activity at the time. Id. at 221-22 . The Court reasoned that section 776.032(1), Florida Statutes (2009), provides immunity from criminal prosecution for persons using force as permitted in section 776.012 or section 776.013, and the requirements of each are not identical....

...It asserts that section 776.012(1) does not provide a basis for a person engaged in unlawful activity to be excused from the use of deadly force in self-defense, for such an interpretation would directly contradict the express legislative intent of section 776.012 and render the “unlawful activity” preclusion of section 776.013(B) meaningless....

...Like Garrett, Hardison was a convicted felon in possession of a firearm at the time of the incident. Id. And as in the instant case, the trial court in Hardison instructed the jury on justifiable use of deadly force, using the standard instruction that tracks section 776.012, combined with instructions relating to section 776.013: “[i]f the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground,” and “[possession of a firearm by a convicted felon is an unlawful activity.” Id....

...When asked for the legal basis for the objection, defense counsel stated that the case doesn’t require that the challenged language be included in the jury instruction. . We note that section 776.012, Florida Statutes (2011), has since been amended to include the "unlawful activity” preclusion contained in 776.013(3)....

...e from criminal prosecution under Florida’s Stand Your Ground law because she acted in self-defense. The Stand Your Ground law is codified in section 776.032(1) and grants criminal immunity to persons using force as authorized in sections 776.012, 776.013, or 776.031. Sections 776.012(1) and 776.013(3) authorize the use of deadly force based on a reasonable belief that it is necessary to prevent great bodily harm or death....

...defense beyond a reasonable doubt. The State may present such evidence “through rebuttal witnesses or by inference in its case-in-chief.” Id. The first question on this issue is whether Leasure presented a prima facie case of self-defense. Under section 776.013(3), a person is justified in using deadly force when that person (1) is attacked in a place where she has a right to be, (2) is not engaged in any unlawful activity, and (3) reasonably believes it is necessary to use force to prevent death or great bodily harm....

...dence.” Darling v. State, 81 So.3d 574, 577 (Fla. 3d DCA 2012). Chapter 776, Florida Statutes, encompasses what is referred to as Florida’s “Stand Your Ground” law. Under section 776.032(1): A person who uses force as permitted in s.776.012, s.776.013, or s.776.031 is justified in using such force and is immune from criminal prosecution and civil ac *539 tion for the use of such force, unless the person against whom force was used is a law enforcement officer.......

...is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. Section 776.013, titled “Home protection; use of deadly force; presumption of fear of death or great bodily harm,” provides, inter alia: A person who is not engaged in an unlawful activity and who is attacked in any other place 5 where he or she...

...cluding 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.... § 776.018(3). Dr. and Mrs. Pages assert that Tapia was not entitled to immunity because, under section 776.013(3), he was “engaged in unlawful activity” when he pushed Dr....

...e pushed Dr. Pages, barring Tapia from seeking immunity under section 776.032. Even if we were to find that the guilty plea to misdemeanor battery upon Mrs. Pages established as a matter of law that Tapia was “engaged in criminal activity” under section 776.013, it is beside the point: Tapia was entitled to, and did, assert immunity not only under section 776.013, but under section 776.012 as well....

...Under section 776.012, Tapia would be justified in using non-deadly force against Dr. Pages if he reasonably believed such force was necessary to defend himself or Ms. Singer (Tapia’s disabled wife) against Dr. Pages’ imminent use of unlawful force. It is true that under section 776.013(3), a person may “meet force with force, including deadly force” (emphasis supplied), which on its face appears to contemplate the use of both deadly and non-deadly force. We also acknowledge that the person seeking immunity under section 776.013(3) must establish that he was “not engaged in unlawful activity.” However, this “not engaged in unlawful activity” language is not present in the applicable portion of section 776.012, which unambiguously provides for the justified use of non-deadly force. Section 776.032, by its express language, provides immunity for a person “who uses force as permitted in sections 776.012, 776.013 or 776.031.” This language evidences a clear legislative intent to provide alternative bases for asserting immunity under the Stand Your Ground Law....

...defend against Pages’ imminent use of “unlawful force” upon Tapia’s wife, Tapia was justified in the use of non-deadly force under section 776.012, rendering unnecessary any further discussion of the alternative provisions or requirements of section 776.013(3)....

...he mall and witnessed the incident. .Even Dr. Pages admitted he was screaming and waving his arms at Tapia and that he bumped Tapia with his chest. . The reference to "any other place” distinguishes this provision from the preceding subsections of section 776.013, which address the use of force in a dwelling, residence, or occupied vehicle. See §§ 776.013(l)-(2), Fla. Stat. (2009). . Appellant’s argument would require us to conclude that the Legislature, in enacting section 776.013(3), abolished the long-recognized and near-universal common-law concept that there is no duty to retreat when using non-deadly force in defense of self or *540 others....

...ther determined, as a finding of fact, that Tapia was not engaged in unlawful activity and that the credible testimony established that Tapia had no physical contact with Mrs. Pages. Although the magistrate concentrated on the immunity provisions of section 776.013, Tapia had raised entitlement to immunity under sections 776.013 and 776.012. Because there was competent substantial evidence to support a finding of immunity under section 776.012, we need not address whether, under section 776.013, Tapia's guilty plea and adjudication conclusively established, for immunity purposes, that he was engaged in unlawful activity.

...*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)....

...for aggravated assault with a firearm (Counts I & II), unlawful discharge of a firearm in public (Count III), and improper exhibition of a firearm (Count IV) on the ground he was immune from suit under Florida’s Stand Your Ground Law, sections 776.013-.082, Fla....

...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....

...n the state for whom unlawful customer resistance in the field is a constant hazard. FPL has strict protocols concerning when and how it exercises its statutory privilege to enter onto customer property. However, unlike law enforcement officers, see § 776.013(2)(d), Fla....

...1 The trial court decided it would give the instruction, but modified the standard instruction by replacing “land” with “real property other than a dwelling,” tracking the language of section 776.031. Since it added the word “dwelling”, the court decided to also give the definition of dwelling set forth in section 776.013, Florida Statutes (2010), which defines dwelling as a residence and its attached porch....

...A residence is commonly understood to be the house in which one lives. Residence Definition, Dictionary.com, http:// dictionary, reference, com/browse/residence (last visited Aug. 9, 2012). Neither side requested an instruction defining “a residence.” Although section 776.013(5) begins with “As used in this section ...,” it does not appear inappropriate to apply the definition of “dwelling” in that section to other parts of Chapter 776 (Justifiable Use of Force)....

...believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be. § 776.031, Fla. Stat. (2010) (emphasis added). . Section 776.013(5), Florida Statutes, provides: As used in this section, the term: (a) "Dwelling” means 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. (b) "Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest. § 776.013(5), Fla....

...In support of his claim of fundamental error, Appellant relies primarily on Talley v. State, 106 So.3d 1015 (Fla. 2d DCA 2013). In that case, the court held that the portion of the standard jury instruction emphasized above was flawed because, even though the instruction tracks the language in section 776.013(3), Florida Statutes, word-for-word, 5 the instruction includes a comma after the phrase “including deadly force” that is not in the statute....

...The instructions clearly explained that the justifiable use of non-deadly force was a defense to the crime with which Appellant was charged and the instructions properly defined the term “non-deadly force.” The instructions then explained the elements of the defense, as provided in sections 776.012 and 776.013(3). The portion of the instruction challenged by Appellant concerns section 776.013(3), but under the circumstances of this ease, Appellant was not even entitled to assert the defense provided in that statute. Section 776.013(3) only applies when a person “is not engaged in an unlawful activity” and “is attacked in any [] place where he or she has a right to be.” Here, it was undisputed that the fight started after Appellant refused to leave Perkins’ property despite having been repeatedly asked to do so....

...Accordingly, at the time he used force to defend himself against Perkins’ alleged unprovoked attack, Appellant was no longer in a place he was entitled to be and was engaged in unlawful activity (i.e., trespassing), so he was not entitled to the defense in section 776.013(3). Instead, Appellant’s claim of self-defense was governed solely by section 776.012, which authorizes “[a] person”— without the prerequisites in section 776.013(3) 9 — to use non-deadly force “when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself ......

...appeared to Appellant to be imminent. Appellant’s counsel emphasized this por *1006 tion of the self-defense instruction in his closing argument. Accordingly, the fact that there was a grammatical error in the portion of the instruction related to section 776.013(3) is harmless in this case because the record establishes that Appellant’s self-defense claim was governed by section 776.012, not section 776.013(3)....

...Accordingly, in this case, it was necessary and proper for the court to inform the jury that Appellant both did (if he was the found to be the initial aggressor) and did not (if Perkins was found to be the initial aggressor) have a duty to retreat. Compare § 776.041(2)(a), Fla. Stat. with §§ 776.012, 776.013(3), Fla....

...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....

...3d DCA 1974) ("A conviction will not be reversed because a particular jury instruction has not been given where, on the whole, the charges as given are clear, comprehensive, and correct.”). . See Little v. State, 111 So.3d 214, 221 (Fla. 2d DCA 2013) (explaining that the requirements of sections 776.012 and 776.013(3) are not identical and that a person who does not meet the prerequisites in section 776.013(3)— not engaged in unlawful activity and attacked in any place outside the home where he or she has a right to be — would have to look to section 776.012 to determine whether the use of force was justified).

...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. Id. (emphasis supplied). Section 776.013 creates a presumption of reasonable fear of imminent peril of death or great bodily harm where a person has unlawfully and forcefully entered a dwelling, residence, or occupied conveyance or attempted to remove a person from one of these locations....

...1 Montijo challenges various aspects of the instruction on the justifiable use of deadly force read and provided to the jury. We find no error in the instruction regarding the duty to retreat and its juxtaposition to an individual’s right to stand one’s ground when confronted with the use of force, as set forth in section 776.013(3), Florida Statutes....

...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....

...Having occurred in 2010, the events in this case are governed by the 2010 Florida Statutes. - 12 -  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. (2010) (emphasis supplied). Next, section 776.013, “Home protection; use of deadly force; presumption of fear of death or great bodily harm,” contains what is commonly known as the “Stand Your Ground” law: A person who is not engaged in an unlawful activity an...

...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 be. § 776.031 Fla. Stat. (2010) (emphasis supplied). In addition to providing a defense to criminal charges, chapter 776 also provides immunities from criminal prosecution and civil actions for conduct justified under sections 776.012, 776.013, and 776.031....

...ding and eviscerated Talley’s only defense. He points out that there is a comma after the phrase “including deadly force” in the standard jury instruction, emphasized above, but not in the statutory section upon which the instruction is based. 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 the right to stand his or h...

...ALTENBERND and LaROSE, JJ., Concur. . Because this additional comma is erroneous, we urge the Florida Supreme Court Committee on Standard Jury Instructions in Criminal Cases to review instruction 3.6(g) and make appropriate changes so that it is consistent with section 776.013(3).

...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....

...is 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....

...to withdraw from the confrontation and the alleged victim continues or resumes the use of force. Id. Moreover, the “stand your ground” law specifically requires that the person invoking the defense “not [be] engaged in an unlawful activity.” § 776.013(3); see also Dorsey v....

...Appellant’s counsel asked the court to include this language because appellant could argue that he was in his own dwelling or residence when he first was kicked. Ultimately, appellant’s counsel agreed to an instruction based on the 2012 version of section 776.013, Florida Statutes, which, in pertinent part, included: The defendant was not engaged in an unlawful activity....

...version of no duty to retreat, changing the phrase “including deadly force” to non-deadly force, but then agreed that the instruction was fine as it was because it would include non-deadly force. The court read to the jury the following instruction based on section 776.013 regarding the self-defense claim on the battery charge: 6  If the Defendant was not engaged in an unlawful activity, and was attacked any place where he had a right to be, he had n...

...State, 848 So. 2d 491, 492 (Fla. 5th DCA 2003)). Under the 2012 version of Florida's Stand Your Ground Law,2 section 776.032(1) provides for immunity from criminal prosecution for any person who uses force as permitted in section 776.012, section 776.013, or section 776.031. Here, Eady raised his theory of self-defense under the 2012 version of section 776.012. Although section 776.013 precludes immunity where a person engages in unlawful activity at the time they use force, the version of section 776.012 in effect in 2012 did not....

...activity at the time of the shooting. Id. at 219. The trial court denied his motion, and he appealed. Id. at 217. On appeal to our court, the State argued that Little was not entitled to immunity because he was engaged in unlawful activity under section 776.013(3). Id. at 218-19. Our court disagreed and held (1) that a person may pursue immunity if they qualify "under either section 776.012(1) or 776.013(3)"; (2) that section 776.012(1) does not preclude immunity where the person who uses force engaged in unlawful activity; and (3) that any person who did not meet the requirements of section 776.013(3) could look to section 776.012(1) as "another means of obtaining immunity." See id. at 219-22. Three years later, our court applied the holding of Little to the identical versions of section 776.012(1) and section 776.013(3) that are at operation here. In 3In2014, the legislature amended section 776.012 to conform with section 776.013 so as to require the person using force or threatening to use force not be engaged in unlawful activity....

...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....

...occurring on November 6, 2004. Id. at 332. The defendant shot the victim who was an occupant of the defendant’s cab. Id. Before trial, the defendant filed a motion to permit the use of two special jury instructions based upon the newly enacted statute, at the time section 776.013, Florida Statutes (2005)....

...after finding that “the statute was remedial and should have retroactive application.” Id. The State appealed to the Fourth District Court of Appeal via an emergency petition for writ of certiorari. The Fourth District granted the State's petition, holding that section 776.013, Florida Statutes (2005), does not apply to conduct committed prior to its effective date of October 1, 2005; therefore, the defendant was not entitled to the requested jury instructions....

...at 332-333. The defendant then filed a motion for rehearing or certification of this issue as a question of great public importance—the Fourth District denied rehearing. However, the Fourth District certified the following question 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....

...Here, the subsection (4) amendment to section 776.032 imposed a new legal burden on the State, requiring the State to prove by clear and convincing evidence that the defendant was not justified in using or threatening to use force as permitted in sections 776.012, 776.013, or 776.031, Florida Statutes....

...mitted.” The Florida Constitution imposes a restriction on retroactive application of criminal legislation. The Florida Supreme Court in Smiley went on to state: As the State correctly argues, this constitutional provision precludes section 776.013 from applying retroactively to pending cases. The key determination is that section 776.013 qualifies as a “criminal statute.” With regard to article X, section 9, the term “criminal statute” is defined in a broad context....

...She as *260 serts this conflict negated her only theory of defense, self-defense, and thus the error was fundamental. As will be discussed below: (A) the instruction was a misstatement of the law; however, (B) the instruction was not fundamental error under the facts of this case. A. Duty to Retreat — §§ 776.012(1), 776.013(3), and 776.Oil, Fla....

...to retreat if: (1) 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, Fla. Stat. (2009). Section 776.013(3) stated a person not engaged in unlawful activity had no duty to retreat: (3) A person who is not engaged in an unlawful activity and who is attacked in any other place [other than a dwelling, residence, or occupied vehicle] where h...

...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. (2009). 2 These statutes created two different standards. Under section 776.013, a person not engaged in unlawful activity was entitled to stand his or her ground if that person “reasonably believed it is necessary to prevent death or great bodily harm.” § 776.013(3), Fla....

...han the use of force,” or “withdraws from physical contact with the assailant” and “indicates clearly ... that he or she desires to withdraw.” § 776.041(2)(a)-(b), Fla. Stat. (2009). *261 Here, instructions reflecting sections 776.012(1), 776.013(3), and 776.041(2) were read to the jury. The State argues that because appellant was engaged in unlawful activity — a marijuana transaction — she had a duty to retreat, and thus it was not error to instruct the jury pursuant to section 776.013....

...a forcible felony” the defendant is “entitled to request and receive an instruction reflecting section 776.012(1).” “Therefore, it was error for the trial court to instruct the jury regarding Garrett’s unlawful conduct” by instructing on section 776.013(3) and instructing that possession of a firearm by a convicted felon was unlawful....

...If a defendant’s claim of self-defense was based solely on the prior version of section 776.012(1), then it is “an incorrect statement of the then-existing law” to instruct that the defendant had a duty to retreat if engaged in unlawful activity pursuant to section 776.013....

...the defendant.’ ” Floyd v. State, 151 So.3d 452, 454 (Fla. 1st DCA 2014), review granted, SC14-2162 (Fla.2014) (quoting Carter v. State, 469 So.2d 194, 196 (Fla. 2d DCA 1985)). The Garrett court found the error in instructing on both 776.012 and 776.013 was not fundamental in that case because “the jury was not precluded from considering Garrett’s affirmative defense, regardless of his unlawful activity.” 148 So.3d at 471 ....

...Appellant would have been entitled to request an instruction that she had no duty to retreat if the danger was imminent under section 776.012(1), and it was error to instruct that she had a duty to retreat if engaged in unlawful activity pursuant to section 776.013(3). Regardless, that error was not fundamental because it did not negate her theory of defense. Like in Garrett , even under the section 776.013(3) instruction, there was evidence from which the jury could have *262 found that although appellant was engaged in an unlawful activity, appellant had no duty to retreat and had the right to stand her ground because retreating would have been futile due to the imminence of the danger that she faced....

...Both sections were amended in 2014, resolving this discrepancy. Section 776.012(2), Florida Statutes (2014) now states a defendant may stand his or her ground only if “not engaged in criminal activity and is in a place where he or she has a right to be.” Section 776.013(3), Florida Statutes (2014) now pertains only to a person "in his or her dwelling, residence, or vehicle,” and states there is no duty to retreat, without reference to unlawful activity.

...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)....

...denial of his dispositive motion to dismiss, which asserted “Stand Your Ground” immunity under section 776.032, Florida Statutes (2010). Section 776.032 provides immunity from prosecution under three separate statutory defenses-sections 776.012, 776.013, and 776.031. The trial court found that although Miles acted in self-defense, he was not entitled to immunity from prosecution under section . 776.013(3) because he was engaged in unlawful activity (i.e., carrying a concealed firearm). Miles argues on appeal that the “unlawful activity” prohibition found in section 776.013(3) does not negate immunity under section 776.012....

...Miles later entered into a negotiated plea to reduced charges and reserved the right to appeal the trial court’s ruling on his motion to dismiss. In concluding that Miles was not entitled to immunity because he was engaged in the unlawful activity of carrying a concealed firearm, the trial court cited to sec *171 tion 776.013(3), Florida Statutes, and Dorsey v. State, 74 So.3d 521 (Fla. 4th DCA 2011) (“Dorsey I”). Section 776.013(3), Florida Statutes (2010), 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 ground and...

...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. Dorsey I held that under section 776.013(3), when a defendant is engaged in an unlawful activity, such as possession of a firearm by a convicted felon, the common law duty to retreat still applies to self-defense rather than the Stand Your Ground law....

...e context of asserting immunity from prosecution or in the context of jury instructions at trial. The Second, Third, and Fourth District Courts of Appeal have held that although a defendant engaged in unlawful activity could not claim immunity under section 776.013(3), he or she could assert immunity under section 776.012 prior'to 2014 1 because that statute had no “unlawful activity” exception....

...1st DCA 2014) (noting that statutory immunity under section 776.032(1), based on sections 776.012, “is potentially available even to a person engaged in an unlawful activity at the time”); see also State v. Wonder, 39 Fla. L. Weekly D1695 (Fla. 4th DCA Aug.13, 2014) (noting in dictum that sections 776.012 and 776.013 provide alternate forms of immunity; since defendant did not seek immunity under section 776.013, trial court erroneously considered whether defendant was engaged in unlawful activity at time)....

...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....

STEVENSON, J. The State appeals the trial court’s dismissal of an aggravated battery with a firearm charge against the defendant pursuant to Florida’s Stand Your Ground law, section 776.013, Florida Statutes (2009)....

...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(8), Fla....

...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).

...crime was committed, such construction would violate Article X, section 9, and therefore, be unconstitutional. Cf. Smiley, 966 So. 2d at 337 (“Therefore, article X, section 9 of the Florida Constitution makes it constitutionally impermissible for section 776.013 to receive retroactive application.”). 4  Judge Wolf’s concurring opinion in Wright v....

...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....

...2d DCA 2013), in which this court held that a defendant engaged in unlawful activity is not precluded from seeking immunity under section 776.012, Florida Statutes (2011), 3 even though the same unlawful activity would prevent him *806 or her from obtaining the immunity under section 776.013....

...The defendant in Little filed a motion to dismiss arguing that he was entitled to immunity under the Stand Your Ground law as provided for in sections 776.032 and 776.012(1). Section 776.032(1) provides that persons using force as permitted under sections 776.012, 776.013, or 776.031 are “justified in using such force and [are] immune from criminal prosecution and civil action for the use of such force.” The State responded, arguing in part that the defendant was not entitled to immunity because he was engaged in unlawful activity, citing section 776.013(3)....

...t 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. (Emphasis added.) Although section 776.013(3) requires that a defendant not be engaged in unlawful activity, as we explained in Little , a defendant’s felonious possession of a firearm does not preclude such a defendant from raising a defense under section 776.012(1), which...

...and litigation, we decline to authorize it for publication and use.1 We also refer instruction 3.6(f) back to the Committee for consideration of whether the instruction should be amended to include language addressing a defendant’s duty to retreat under section 776.013(3), Florida Statutes (2015). The enactment of chapter 2014-195, § 4, Laws of Florida, significantly revised language in section 776.013(3), Florida Statutes, pertaining to the circumstances under which a defendant does not have a duty to retreat before using force. The proposal submitted by the Committee, while addressing a defendant’s duty to retreat under sections 776.012(2) and 776.031(2), Florida Statutes, does not address a defendant’s duty to retreat under section 776.013(3), Florida Statutes. We are concerned that instruction 3.6(f) as proposed by the Committee does not fully address the circumstances under which a defendant does not have a duty to retreat before using force....

...sufficient to mitigate the confusion and litigation that is likely to occur from the proposed note’s inconsistency with established case law. -3- language addressing a defendant’s duty to retreat under section 776.013(3), Florida Statutes. Accordingly, the instructions, as set forth in the appendix to this opinion, are authorized for publication and use.2 In authorizing the publication and use of these instructions, we express no opinion...

...believed that the danger was real. However, the defendant had no duty to retreat if [he] [she] was not otherwise engaged in criminal activity and was in a place where [he] [she] had a right to be. -8-  No duty to retreat. § 776.013(3), Fla....

...[another] or to 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....

...e] and the defendant had reason to believe that had occurred. The defendant had no duty to retreat under such circumstances. Presumption of fear (unlawful and forcible entry into dwelling, residence, or occupied vehicle). Give if applicable. § 776.013(1), Fla....

...-9-  b. (Defendant) knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred. Exceptions to Presumption of Fear. § 776.013(2)(a)-(2)(d), Fla....

...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. Stat. § 776.013(5), Fla....

...to enter - 10 - another’s [dwelling] [residence] [occupied vehicle] is presumed to be doing so with the intent to commit an unlawful act involving force or violence. Definitions. Give if applicable. § 776.013(5), Fla....

...[occupied vehicle] and the defendant had reason to believe that had occurred. The defendant had no duty to retreat under such circumstances. Presumption of fear (unlawful and forcible entry into dwelling, residence, or occupied vehicle). Give if applicable. § 776.013(1), Fla....

...upied vehicle; and b. (Defendant) knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred. Exceptions to Presumption of Fear. §§ 776.013(2)(a)-(2)(d), Fla....

...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), § 776.013(5), Fla....

...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. (2009). Section 776.013, Florida Statutes, generally governs use of deadly force in defense of oneself or another in a dwelling, residence or occupied vehicle....

...d his or her ground and meet force with force, including deadly force if he or she reasonable 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....

...laining the circumstances under which a defendant has the right to use deadly force in self-defense without the duty to retreat, the instruction effectively limits the right to persons “not engaged in unlawful activity.” He argues that, although section 776.013(3) includes such a restriction, section 776.012 does not; rather, under sub *1133 section (1), any person, who reasonably believes deadly force is necessary to prevent imminent death or great bodily harm, or an imminent forcible felon...

...criminal prosecution under section 776.032(1), 1 even though he or she was engaged in unlawful activity at the time. Although not central to its holding in the case, the court, answering the State’s “Tipsy Coachman” argument, 2 , 3 determined: 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 requirements under sections 776.012(1) and 776.013(3) are not identical. A person proceeding under section 776.013(3) would have to prove that he or she reasonably believed the use of deadly force was “necessary ......

...ellant was not engaged in unlawful activity. Concurring with the analysis in Little , the Fourth District concluded the matter of unlawful activity was irrelevant in any event, because the appellant sought immunity only under section 776.012(1), not section 776.013, and “[t]he exception for a defendant’s engagement in ‘unlawful activity’ does not exist under section 776.012.” Wonder, 128 So.3d at 869 ....

...For these reasons, we conclude no fundamental error occurred, and, we AFFIRM Hardison’s conviction and sentence. ROBERTS and WETHERELL, JJ„ concur. .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....

...e 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....

...rapidly evolving state of the law at the time of the appellant’s trial. 3 Compare State v. Hill, 95 So. 3d 434 (Fla. 4th DCA 2012) (holding a convicted felon in possession of a firearm was engaged in unlawful activity under section 776.013 and not entitled to Stand Your Ground immunity) with Little v....

...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 

...Petitioner asserts that he was reasonably in fear of imminent death or great bodily harm due to an occupant of another vehicle attempting to enter petitioner’s vehicle while both were stopped at a traffic light. According to petitioner, this fact triggered a statutory presumption under section 776.013(l)(a), Florida Statutes (2012), that his fear was reasonable, thus allowing him to use deadly force (shooting towards the other vehicle) in defense of himself. See § 776.012(2), Fla. Stat. (2012) (permitting use of deadly force under the circumstances set forth in section 776.013)....

...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....

...and meet force with force, including deadly force, if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of Attempted Murder or Armed Robbery. (Emphasis added.) However section 776.013, 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 right to stand his or her ground a...

...orida 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....

...for writ of prohibition. 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 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....

...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. (emphasis added). There is no similar provision in section 776.012 limiting immunity if the defendant is involved in “unlawful activity.” Section 776.013, Fla....

...t]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....

...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....

...At first glance, the title to each section of chapter 776 demarcates 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. [[Image here]] 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)....

...vant to the other charges. “The standard of review for the denial of a motion for severance is abuse of discretion.” Stephens v. State, 863 So.2d 434, 436 (Fla. 4th DCA 2003). Florida’s Stand Your Ground law is codified in sections 776.012 and 776.013....

...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. (emphasis added). Section 776.013, Florida Statutes (2010) (amended 2014), states: Home protection; use of deadly force; presumption of fear of death or great bodily harm (1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodil...

...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. (emphasis added). “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.” Hill v....

...er a possession of a firearm charge from a charge of murder. State v. Vazquez, 419 So.2d 1088 (Fla.1982); McGriff v. State, 160 So.3d 167 (Fla. 1st DCA 2015). Significantly, in the instant case, however, appellant relied on both sections 776,012 and 776.013 in his defense. As such, the trial court properly admitted evidence of appellant’s convicted felon status because it was clearly relevant to the jury’s determination of whether appellant’s possession of the gun was lawful under section 776.013....

...State, 98 So.3d 71, 73 (Fla. 4th DCA 2012) (quoting Bassallo v. State, 46 So.3d 1205, 1209 (Fla. 4th DCA 2010)). This court has held it is fundamental error to instruct a jury on a duty ' to retreat ■ where only section 776.012(1) applies, and not where section 776.013(3) is applicable. Rios v. State, 143 So.3d 1167 (Fla. 4th DCA 2014); Dorsey v. State, 149 So.3d 144 (Fla. 4th DCA 2014). In the instant case, because appellant re lied on both sections 776.012 and 776.013 in his defense, and a duty to retreat instruction was relevant and proper for section 776.013, the reading of the instruction was not in error in this case....

...These are the versions of the statute that were in effect at that time. In 2014, the legislature amended section 776.012(2) to state that a defendant may stand his or her ground only if "not engaged in a criminal activity and is in a place where he or she has a right to be.” Section 776.013(3) now pertains only to "[a] person who is attacked in *1054 •his- or her dwelling, residence, or vehicle," and states there is no duty to retreat, without reference to unlawful activity.

...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)....

...He never intended to kill the victim or hurt him badly. During the charge conference, the defendant requested a special instruction modeled after the standard “stand your ground” jury instruction and the trial court declined to give the instruction, stating, “I think that [section] 776.013 was meant for non-residents entering into the residence, not residents having a confrontation in the residence....

...(1) 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[.] (Emphasis added). While section 776.013, Florida Statutes (2013), requires an element of home protection, section 776.012 does not. 3 Accordingly, the requested instruction accurately stated the law regarding a lack of a duty to retrea...

...was just trying to scare them.” From October 2005 until June 2014 (the offense occurred in 2013), two different provisions of the Stand Your Ground law permitted a defendant to use deadly force without retreating, under certain circumstances. Section 776.013(3), Florida Statutes (2013) permitted the use of deadly force to prevent death or great bodily harm, so long as the defender was not engaged in unlawful activity....

...(2013); see also Little v. State, 111 So. 3d 214, 221 (Fla. 2d DCA 2013) (noting that a defendant engaged in unlawful activity could seek Stand Your Ground immunity under section 776.012 even though the unlawful activity would preclude immunity under section 776.013). However, because Appellant did not object to the jury instruction, it “can be raised on appeal only if fundamental error occurred.” State v. Delva, 575 So....

...force was “necessary to prevent imminent death or great bodily harm.” See § 776.012(2), Fla. Stat. Nor did he show that the use of deadly force was necessary “to prevent the imminent commission of a forcible felony.” Id. Petitioner did not show any of the circumstances in section 776.013(2) that create a presumption of fear of death or great bodily harm. To raise a “prima facie claim of self-defense immunity from criminal prosecution” under section 776.032(4), a defendant must show that the elements for the justifiable use of force are met....

...ed to have been necessary to prevent imminent death or great bodily harm or the imminent commission of a forcible felony. Although section 776.012(1) did not, in 2011, require that the defendant not be engaged in unlawful activity, section 776.013(3), a subsection governing the use of force outside the home, did contain such a requirement. This created some confusion over whether section 776.013(3) expressed or implied a requirement that a defendant claiming self-defense under section 776.012(1) not have been engaged in unlawful activity at the time of the use of deadly force....

...controlling decision in Little, Mr. Bolduc has raised a facially sufficient claim that his trial counsel performed deficiently by failing to object.4 See Adams v. State, 727 So. 2d 997, 3Little 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. 4Although the postconviction court did not address the question in its order, to the extent that Mr....

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

...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). . Compare the provision commonly known as the Stand Your Ground law: 776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm....

...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....

...On appeal, Fuller argues that one of the jury instructions regarding self-defense included erroneous statements regarding his duty to retreat prior to using deadly force, which conflicted with another proper jury instruction. The complained of jury instruction was based on section 776.013, and read: If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he has no duty to retreat and had the right to stand his ground a...

...Given the evidence presented at trial, it was error to give the above jury instruction which included a duty to retreat if the defendant was engaged in an unlawful activity as the circumstances involved in the shooting fell under section 776.012 rather than 776.013. See Miles v....

...te created a new right of self-defense, permitting the use of deadly force with no duty to retreat under specified circumstances; that right did not exist previously outside one’s home. Smiley, 966 So. 2d at 335. The supreme court found that “section 776.013 created a new affirmative defense for situations in which one may use deadly force without first retreating.” Id....

...On appeal, Marty argues that the trial court erred by: (1) failing to instruct the jury as to the legal use of nondeadly force; (2) failing to grant his motion for judgment of acquittal; and (3) failing to give an instruction on the presumption of reasonable fear of death or great bodily harm, pursuant to section 776.013(1), Florida Statutes (2014)....

...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:

...Thus, prohibition is not the appropriate vehicle under which to proceed. We best proceed under our certiorari jurisdiction. Jefferson, 264 So. 3d at 1023. Section 776.032(1) provides immunity to a person using force as permitted in sections 776.012, 776.013, or 776.031....

...Garcia was not entitled to immunity under section 776.012(1) because he was not defending against the imminent use of unlawful force. As the State concedes, these findings are wrong as a matter of law. The trial court cited to sections 776.031(1) and 776.013(1) when it found that Mr....

...against another when that person reasonably believes such conduct is necessary to terminate the other's trespass on either real property other than a dwelling or personal property lawfully in his possession. § 776.031(1) (emphasis added); see also § 776.013(5)(a) (defining "dwelling"). Section 776.031(1) does not apply to a dwelling and is inapplicable to Mr. Melchild's initial use of force. Section 776.013 provides that a person who is in a dwelling or residence is permitted to use nondeadly force against another if the person reasonably believes such conduct is necessary to defend against the other's imminent use of unlawful force. -5- See § 776.013(1)(a)....

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

...e — thereby depriving Jackson of his sole defense to the charge. Further compounding the problem was the wording of one of the paragraphs in the standard instruction on the use of nondeadly force in self-defense, which incorporated the language in section 776.013(3), Florida Statutes (2012), concerning circumstances when there is no duty to retreat before using deadly force....

...explicitly prohibited the victim from going there. We therefore hold the error in excluding the fíancée’s testimony was not harmless and a new trial is required. Reversed and remanded. WARNER and CIKLIN, JJ„ concur. . The defense was based on section 776.013, Florida Statutes (2011)....

...gence charge and for a new hearing on the violation of probation. The trial court abused its discretion in denying Elder’s request for a jury instruction on the presumption of fear for justifiable use of deadly force, as established by section 776.013(1), Florida Statutes (2013) During the charge conference, defense counsel requested that the court give the standard jury instruction modeled on section 776.013, Florida Statutes, which creates a presumption of reasonable fear of death or great bodily harm if “the person against whom the defensive force was used” was in the process of unlawfully and forcefully entering an occupied vehicle...

...occupied vehicle; and b. (Defendant) knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred. Fla. Std. Jury Instr. (Crim.) 3.6(f) (emphasis added); see also § 776.013(1), Fla....

...that the victim “had unlawfully and forcibly entered” Elder’s occupied 1 The 2013 version of the statute was still in effect at the time of the incident in April 2014. The statute was subsequently amended to include language regarding “threatening to use” defensive force. See § 776.013(1), Fla....

PER CURIAM. Affirmed. See State v. Smiley, 927 So.2d 1000 (Fla. 4th DCA 2006), review granted, 937 So.2d 123 (Fla.2006). However, we certify the same question of great public importance as we did on rehearing in Smiley: DOES SECTION 776.013, FLORIDA STATUTES (2005), APPLY TO CASES PENDING AT THE TIME THE STATUTE BECAME EFFECTIVE? State v....

...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....

.... Residence usu. just means bodily presence as an inhabitant in a given place; domicile usu. requires bodily presence plus an intention to make the place one's home. . . . A house or other fixed abode; a dwelling. . . ." 6 In addition, I note that section 776.013 (5)(b), Florida Statutes, defines "Residence" for purposes of the use of justifiable force for protection of the home to mean a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest....

...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)....

...guilty of battery. T.P. appeals, contending that the court misconstrued the law on self-defense. The Stand Your Ground law provides immunity from prosecution if the defendant is justified in the use of force in accordance with, among other provisions, section 776.013. Section 776.013(3), adopted as part of the Stand Your Ground law provides: *866 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...

...so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony. As we explained in McWhorter v. State, 971 So.2d 154, 156 (Fla. 4th DCA 2007): 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.... ... [U]nder 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. Stat. (2005). (Internal citation omitted). In this case, T.P. had the right to assert a defense under section 776.013(3)....

...and whether he reasonably believed that such force was necessary to prevent harm to himself were factual matters for the trial court to determine based upon a preponderance of the evidence. See Leasure v. State, 105 So.3d 5,12 (Fla. 2d DCA 2012). The trial court rejected the application of section 776.013, misunderstanding the section to apply only to homes and vehicles....

...ly to a person in a public place, such as a school bus. At the trial, the trial court merely adopted its prior ruling in denying the motion to dismiss based upon the Stand Your Ground claim. Because the trial court erred in its legal conclusion that section 776.013 did not apply, we reverse for the trial court to consider the motion to dismiss under a proper construction of the statute....

...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...

...nt verdict inconsistent with the State’s rebuttal to Williams’ self-defense theory. -6- use force to prevent death or great bodily harm. See Leasure v. State, 105 So. 3d 5, 13 (Fla. 2d DCA 2012) (citing § 776.013(3), Fla....

...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) [u]nder those circumstances permitted pursuant to s. 776.013.”); § 776.013(3), Fla....

...7  The Justifiable Use of Non-Deadly Force Florida grants a right to “[i]mmun[ity] from criminal prosecution and civil action for the [justifiable] use or threatened use of such force” permitted by sections 776.012, 776.013, or 776.031, Florida Statutes (2020), except in certain circumstances not applicable in this case. § 776.032(1), Fla....

...personal property[.]” § 776.031(1), Fla. Stat. (2020) (emphasis added). In contrast, while not including the term “physical harm,” each of the other inapplicable sections in the SYG statutory scheme that authorize the use of non-deadly force—sections 776.012(1) and 776.013(1)(a)—seem to require some threat of “physical harm” because they require another’s “imminent use of unlawful force”—which by implication may cause “physical harm”—before the defensive use or threat of non-deadly force is justified. See generally §§ 776.012(1), 776.013(1)(a), Fla. Stat. (2020). Unlike sections 776.012(1) and 776.013(1)(a), section 776.031(1) does not contain any language requiring the “imminent use of unlawful force” by another as a prerequisite to the justifiable use or threatened use of non- 15 deadly force “to prevent or terminate” the “tortious or criminal interference with” a person’s personal property. Compare § 776.012(1), Fla. Stat. (2020), and § 776.013(1)(a), Fla....

...on must fall within one of the statutory sections granting immunity. Here, it is obvious that section 776.012(1) does not apply because the defendant did not face the “imminent use of unlawful force.” § 776.012(1), Fla. Stat. (2020). 7 Nor does section 776.013 apply, because the material facts did not demonstrate that the defendant could “reasonably believe[] that [her] conduct [was] necessary to defend” herself against anyone’s “imminent use of unlawful force.” § 776.013(1)(a), Fla....

...is proper to oppose a risk of actual physical harm to persons and actual physical interference with property. The statutes authorize the use of force in defense of a person or home to resist the “imminent use of unlawful force.” §§ 776.012(1), 776.013(1)(a), 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....

...One comment was filed with the Court from the FPDA. In its comment, the FPDA raised two issues pertaining to both instructions 3.6(f) and 3.6(g), and one issue limited to the instruction on deadly force. First, the FPDA disagreed with the Committee’s proposal to limit the forcible felony language of section 776.013(1), Florida Statutes (2018), by adding the language “against [himself] [herself] [or] [another].” The FPDA pointed out that such language is not included in the statute, and the instruction would not make sense because some forcible felonies are not committed against another person....

...We authorize the publication and use of instructions 3.6(f) and 3.6(g) as modified by the Court. Significant changes to the instructions are discussed below. First, both instructions 3.6(f) and 3.6(g) are modified to be consistent with statutory changes to section 776.013(1), Florida Statutes (2018), as enacted in chapter 2017-77, section 1, Laws of Florida....

...Both Chapter 776 and § Section 782.02, Fla. Stat., and many statutes within Chapter 776 address the justifiable use of deadly force, however, § 782.02, Fla. Stat., does not address the concept of stand-your-ground/no duty to retreat. Additionally, § 776.013(1), Fla....

...However, if (defendant) was placed in a position of imminent danger of death or great bodily harm and it would have increased [his] [her] own danger to retreat, then [his] [her] [use] [or] [threatened use] of deadly force was justifiable. -8-  Give if applicable. § 776.013(1), Fla....

...f brackets. The words within the first set of brackets should be read if the jury is instructed on either § 776.012(2), Fla. Stat., or § 776.031(2), Fla. Stat. The words within the second set of brackets should be read if the jury is instructed on § 776.013(1), Fla....

...criminal activity and was in a place where [he] [she] had a right to be] [was in a dwelling or residence in which [he] [she] had a right to be]. Presumption of fear (unlawful and forcible entry into dwelling, residence, or occupied vehicle). Give if applicable. § 776.013(12), Fla....

...occupied vehicle; and b. (Defendant) knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred. Exceptions to Presumption of Fear. § 776.013(23)(a)-(23)(d), Fla....

...t 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. Stat. § 776.013(5), Fla....

...[use] [or] [threatened] of non-deadly force. “Non-deadly” force means force not likely to cause death or great bodily harm. Definition. “Non-deadly” force means force not likely to cause death or great bodily harm. In defense of person. §§ 776.012(1), 776.013(1), Fla....

...(Defendant) reasonably believed that [his] [her] [use] [or] [threatened use] of force was necessary to prevent or terminate (victim’s) wrongful behavior. Presumption of fear (unlawful and forcible entry into dwelling, residence, or occupied vehicle). Give if applicable. § 776.013(12), Fla....

...occupied vehicle; and b. (Defendant) knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred. Exceptions to Presumption of Fear. §§ 776.013(23)(a)-(23)(d), Fla....

...entering or attempting to enter was a law - 16 -  enforcement officer. If requested, give definition of “law enforcement officer” from § 943.10(14), Fla. Stat. §§ 776.013(4), 776.013(5), Fla....

...Jury Instrs. in Criminal Cases—Report No. 2007-5, 982 So. 2d 1160 (Fla. 2008). Accordingly, instruction 3.6(f) is amended to include two italicized notes alerting courts and litigants of the issue. The first new paragraph is included in the section under section 776.013(1), and provides as follows: -3-  Before the latest Chapter 776 statutes went into effect, case law such as De La Hoz v....

...4th DCA 2013). § 782.02, Fla. Stat., and many statutes within Chapter 776 address the justifiable use or threatened use of deadly force, however, § 782.02, Fla. Stat., does not address the concept of stand-your-ground/no duty to retreat. Additionally, § 776.013(1), Fla....

...not include mere bruises. Section 782.02, Fla. Stat., and many statutes within Chapter 776 address the justifiable use of deadly force, however, § 782.02, Fla. Stat., does not address the concept of stand-your-ground/no duty to retreat. Additionally, § 776.013(1), Fla. Stat., covers the situation where the defendant was in a dwelling and had the right to be there while § 776.012(1), and §776.031(2), Fla....

...However, if (defendant) was placed in a position of imminent danger of death or great bodily harm and it would have increased [his] [her] own danger to retreat, then [his] [her] [use] [or] [threatened use] of deadly force was justifiable. Give if applicable. § 776.013(1), Fla....

...f brackets. The words within the first set of brackets should be read if the jury is instructed on either § 776.012(2), Fla. Stat., or § 776.031(2), Fla. Stat. The words within the second set of brackets should be read if the jury is instructed on § 776.013(1), Fla....

...criminal activity and was in a place where [he] [she] had a right to be] [was in a dwelling or residence in which [he] [she] had a right to be]. Presumption of fear (unlawful and forcible entry into dwelling, residence, or occupied vehicle). Give if applicable. § 776.013(2), Fla....

...occupied vehicle; and b. (Defendant) knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred. Exceptions to Presumption of Fear. § 776.013(3)(a)-(3)(d), Fla....

...he 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. Stat. § 776.013(5), Fla....

...“Non-deadly” force means force not likely to cause death or great bodily harm. “Great bodily harm” means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises. In defense of person. §§ 776.012(1), 776.013(1), Fla....

...(Defendant) reasonably believed that [his] [her] [use] [or] [threatened use] of force was necessary to prevent or terminate (victim’s) wrongful behavior. Presumption of fear (unlawful and forcible entry into dwelling, residence, or occupied vehicle). Give if applicable. § 776.013(2), Fla....

...occupied vehicle; and b. (Defendant) knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred. Exceptions to Presumption of Fear. § 776.013(3)(a)-(3)(d), Fla....

...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), 776.013(5), Fla....

...- 12 - was conducted prior to the effective date of that provision. Lastly, we explain why article X, section 9 is inapplicable. Smiley Smiley addressed whether section 776.013, Florida Statutes (2005), which was enacted in 2005 as part of the original Stand Your Ground legislation, was retroactively “applicable to cases pending at the time of its enactment.” Smiley, 966 So....

...at 336 (alteration in original) (quoting Metropolitan Dade, 737 So. 2d at 499). Smiley looked to article X, section 9’s “restriction on retroactive application of criminal legislation” and concluded that the new statute could not be applied retroactively: The key determination is that section 776.013 qualifies as a “criminal statute.” With regard to article X, section 9, the term “criminal statute” is defined in a broad context....

...Legislature 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....

...rosecuted 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). Id....

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)....

...encounter, Mr. James had been shot dead by Mr. Dooley. We are called upon to decide whether the jury in Mr. Dooley's trial was given a fundamentally erroneous instruction about Mr. Dooley's "Stand Your Ground" defense under sections 776.012 and 776.013(3), Florida Statutes (2010)....

...(2010), and one count of openly displaying a firearm under section 790.053. Mr. Dooley asserted a claim of immunity pursuant to section 776.032(1), Florida Statutes (2010) ("A person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s....

...With minor discussion, both the State and the defense agreed to utilize Standard Jury Instruction 3.6(f) to govern Mr. Dooley's Justifiable Use of Deadly Force defense. That instruction, as given, amalgamated sections 776.012(1) and 776.013(3) together into a single instruction....

...two separate paragraphs—that were emphasized by the assistant state attorney in the State's closing statement—his defense was improperly curtailed by the issue of whether Mr. Dooley had been engaged in "unlawful activity." While that limitation may pertain to section 776.013(3), Mr....

...at 298 (quoting State v. Delva, 575 So. 2d 643, 644-45 (Fla. 1991)). The standard instruction was fundamentally erroneous in this case. The confusion this instruction created can be discerned by first examining how the versions of sections 776.012(1) and 776.013(3) in effect at the time of this incident interacted with each other....

...Both sections are part of the same defense; but they held subtle—and important—distinguishing characteristics, a point we explained at length in Little v. State, 111 So. 3d 214 (Fla. 2d DCA 2013): We conclude that the plain language of sections 776.012, 776.013, and 776.032 can be understood as granting immunity to a person who qualifies under either section 776.012(1) or 776.013(3). . . . .... 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). -9-  The requirements under sections 776.012(1) and 776.013(3) are not identical. A person proceeding under section 776.013(3) would have to prove that he or she reasonably believed the use of deadly force was "necessary ....

...(Emphasis added.) As for criminal immunity, a person engaged in an unlawful activity 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). But section 776.013(3) provides only one means of obtaining immunity under section 776.032(1). Section 776.012(1) provides another means of obtaining immunity for individuals who would not qualify for immunity under section 776.013(3)....

...use of force as permitted in section 776.012. Id. at 219-21. We concluded in Little that while the defendant's status of being a felon in illegal possession of a firearm may have precluded him from availing himself of the protection of section 776.013(3) in his second-degree murder trial, he could still seek immunity based on section 776.012(1). Id. at 222. 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....

...ppellant] of his sole defense and constituted fundamental error."); Little, 111 So. 3d at 219, 221 (concluding that immunity - 10 - 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 pre...

...defense"). - 11 -  The problem with the instruction in the case before us is that there was nothing whatsoever to guide the jury through the distinctions between sections 776.012(1) and 776.013(3)—or even alert the jury that the two sections were distinct— where both parts of Mr....

...f meaningful distinctions between the statutes, we cannot doubt that the legislature intended them to be independent justifications for the use of deadly force."). There was no direction as to how the differing elements of sections 776.012(1) and 776.013(3) interacted for purposes of a Stand Your Ground defense. So one would have read this instruction—in which section 776.013(3)'s "unlawful activity" qualification appears twice in separate paragraphs immediately following section 776.012(1)'s imminent threat instruction—as a singular, unitary set of elements.5 Certainly, it appears that was how the St...

...re, see Dorsey, 149 So. 3d at 146 n.2; Rios, 143 So. 3d at 1170 n.3, so that the change in this part of the defense would not affect Mr. Dooley's case on remand. See Smiley v. State, 966 So. 2d 330, 335, 337 (Fla. 2007) (concluding that amendment to section 776.013 incorporating "no duty to retreat" was a substantive change in the law "because it alter[ed] the circumstances in which it is considered a criminal act to use deadly force without first needing to retreat" and, that therefore, "article X, section 9 of the Florida Constitution makes it constitutionally impermissible for section 776.013 to receive retroactive application"). - 13 - of our decision in Little when it gave this instruction in Mr....

...Petitioner’s pre-trial motion sought the statutory immunity provided for in section 776.032(1), Florida Statutes, which provides in pertinent part: 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....

...hasis added). As the first line of the statute clearly sets out, there are three avenues by which a defendant’s use of force may qualify for the statutory immunity from prosecution: that his or her use of force was permitted by section 776.012; by section 776.013; or by section 776.031. For all three avenues, the 2005 amendments/enactments abolished the duty to retreat if the other statutory justifications for use of force, including deadly force, were met. Of the three avenues for immunity, the use of force as permitted in section 776.013 is the only avenue limited to persons “not engaged in an unlawful activity.” 2 In this case, Petitioner’s motion in the circuit court specifically sought the immunity provided by section 776.032(1) based on his use of force as permitted in section 776.013(3), Florida Statutes....

...illegal drug-sale transaction. The circuit court ruled, and we agree, that under the undisputed facts presented at the motion hearing, immunity under section 776.032(1) was not available to Petitioner on the basis of his use of force as permitted in section 776.013(3)....

...Wonder, 128 So.3d 867 (Fla. 4th DCA 2013); Little v. State, 111 So.3d 214 (Fla. 2d DCA 2013). In order to sufficiently raise a claim for immunity under section 776.032(1), the defendant must identify the particular statutory basis or avenue (section 776.012; 776.013; 776.031; or any combination thereof) upon which he or she relies to justify the force used....

...tion popularly referred to as the "Stand Your Ground law.” Committee Substitute for Committee Substitute for Senate Bill No. 436 (2005) was adopted by the Florida Legislature and published in Chapter 2005-27, Laws of Florida. The bill also created section 776.013 and amended sections 776.012 and 776.031, Florida Statutes. While the phrase "stand his or her ground and meet force with force" does appear in the text of section 776.013(3), chapter 2005-27 did not include the enactment of a title for the legislation....

...eference each other by number, and must be applied in relation to each other, the better practice for legal documents is to refer numerically to the particular section of the Florida Statutes at issue, rather than by the imprecise common parlance. . Section 776.013(3), Florida Statutes, provides: 776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm....

...t verdict inconsistent with the State’s rebuttal to Williams’ self-defense theory. -6- use force to prevent death or great bodily harm. See Leasure v. State, 105 So. 3d 5, 13 (Fla. 2d DCA 2012) (citing § 776.013(3), Fla....