         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-3653
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JAMES WATERS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Duval County.
Russell Healey, Judge.

                         March 28, 2019


PER CURIAM.

     The appellant raises five issues on appeal from the summary
denial of his Florida Rule of Criminal Procedure 3.850 motion. We
affirm Issues I, III, IV, and V without comment. We reverse and
remand Issue II for an evidentiary hearing.

     In 2012, the appellant was charged with second-degree
murder, and he proceeded to trial in July 2013. At trial, the
appellant, a convicted felon, admitted to carrying a gun, but
claimed he shot the victim in self-defense. The trial court granted
a motion for judgment of acquittal on second-degree murder, and
the case went to the jury on the lesser offense of manslaughter.
The parties struggled with the proper jury instruction for a
defendant engaged in unlawful activity and ultimately agreed on
certain standard jury instructions. The jury convicted the
appellant of manslaughter and possession of a firearm by a
convicted felon.

     On appeal, the appellant argued the trial court’s conflicting
jury instructions amounted to fundamental error. This Court
affirmed, finding the appellant had waived both claims of
fundamental error by requesting the instructions he was
challenging. Waters v. State, 174 So. 3d 434, 435 (Fla. 1st DCA
2015) (Waters I). In the alternative, this Court concluded that any
error in the instructions did not negate the appellant’s only theory
of defense because his defense “was not that he had no duty to
retreat, but that the victim had thwarted his effort to flee the
escalating violence, leaving him no option but to use deadly force
because the force asserted against him by the victim ‘was so great
that he reasonably believed he was in imminent danger of death
or great bodily harm.’” Id. Thus, the instructions as given would
not have precluded the jury from finding, under the evidence
presented, that the appellant’s use of deadly force was justifiable.
Id.

     After his judgment and sentence was affirmed, the appellant
filed a timely rule 3.850 motion. Claim one argued defense counsel
was ineffective for failing to object to the jury instructions.
Embedded within claim one were several sub-claims wherein the
appellant argued counsel was ineffective for: convincing him not
to pursue a Stand Your Ground defense under section 776.012,
Florida Statutes (2012); failing to move to sever the possession of
a firearm by a convicted felon charge; and failing to file a pretrial
motion for Stand Your Ground Immunity under section 776.032,
Florida Statutes (2012). The postconviction court summarily
denied claim one, finding Waters I had already concluded any error
in the challenged instructions did not vitiate the appellant’s trial
by negating his only theory of defense. The court found the same
reason applied to the appellant’s allegation that trial counsel was
ineffective for failing to object to the instructions. The order did
not address the sub-claims.

    In Issue II on appeal, the appellant argues the postconviction
court erred in ignoring his sub-claims, which should have been
ruled upon, or if deemed insufficient, should have been remanded

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with the opportunity for him to amend his motion under Spera v.
State, 971 So. 2d 754 (Fla. 2007). We review the order summarily
denying postconviction relief without an evidentiary hearing de
novo and will affirm only where the appellant’s claims are facially
invalid or conclusively refuted by the record. Where no evidentiary
hearing is held below, this Court must accept the defendant’s
factual allegations to the extent they are not refuted by the record.
McLin v. State, 827 So. 2d 948, 954 (Fla. 2002). See also Fla. R.
App. P. 9.141(b)(2)(D).

     Within claim one, the appellant raised a facially sufficient
sub-claim that trial counsel should have pursued Stand Your
Ground immunity under section 776.012. As to deficiency, he
alleged that counsel was ineffective when the evidence existed to
support such a defense. Cf. Andujar-Ruiz v. State, 205 So. 3d 803
(Fla. 2d DCA 2016) (granting a petition for ineffective assistance
of appellate counsel on the basis counsel was ineffective for failing
to argue that fundamental error occurred when the trial court
instructed the jury that the defendant had a duty to retreat if he
was engaged in unlawful activity, which instruction deprived the
appellant of a defense under section 776.012, Florida Statutes
(2011)). With regard to the prejudice prong, the appellant asserted
that had counsel understood the distinction between section
776.013 and 776.012 and sought immunity from prosecution under
section 776.012, the outcome would have been different. A
successful motion to dismiss would have shielded the appellant
from going to trial. Therefore, this Court’s previous finding of no
fundamental error in Waters I does not apply to undermine the
allegation of prejudice.

     Because we found potential merit in Issue II, we directed the
State to file an answer brief pursuant to Toler v. State, 493 So. 2d
489 (Fla. 1st DCA 1986). The State responded that counsel’s
decision not to pursue immunity was likely strategic because a
motion for immunity could have resulted in additional inculpatory
evidence at trial. Evaluation of whether counsel’s decision was
strategic typically requires an evidentiary hearing unless the
strategy is so apparent on the face of the record as to preclude it.
See Maldonado v. State, 183 So. 3d 1106 (Fla. 1st DCA 2015). We
cannot presume counsel acted in a strategic manner here given the
rapidly evolving state of the law at the time of the appellant’s trial.

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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. State, 111 So. 3d 214 (Fla.
2d DCA [April 10,] 2013) (certifying a conflict with Hill and holding
a defense under section 776.012 did not preclude Stand Your
Ground immunity).

     The postconviction court did not address the appellant’s sub-
claims nor did it attach portions of the record to conclusively refute
the claims; therefore, Issue II should be reversed and remanded
for further proceedings. See O’Steen v. State, 247 So. 3d 88 (Fla.
1st DCA 2018) (reversing and remanding where postconviction
court failed to address defendant’s facially sufficient claim of
ineffective assistance of counsel).

    AFFIRMED in part, REVERSED in part, and REMANDED.

ROBERTS, WETHERELL, and OSTERHAUS, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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James Waters, pro se, Appellant.

Ashley B. Moody, Attorney General, Tallahassee, for Appellee.




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