       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT
                               July Term 2014

                            HARVEY M. HILL,
                               Petitioner,

                                     v.

                          STATE OF FLORIDA,
                             Respondent.

                              No. 4D13-3672

                              [July 16, 2014]

  Petition for writ of prohibition to the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; John S. Kastrenakes, Judge; L.T.
Case No. 2009CF006916AMB.

   Carey Haughwout, Public Defender, and Amy Lora Rabinowitz,
Assistant Public Defender, West Palm Beach, and Cherry Grant of Good-
Earnest Law, P.A., Lake Worth, for petitioner.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for respondent.

                                 EN BANC

STEVENSON, J.

   Harvey Hill petitions for a writ of prohibition seeking review of an order
denying his motion to dismiss based on self-defense immunity from
prosecution. We grant the petition, remand for further proceedings, and
sua sponte hear this matter en banc to clarify some overly-broad language
in State v. Hill, 95 So. 3d 434 (Fla. 4th DCA 2012), the unintended
consequences of which led the trial judge to enter the order on review. As
this decision will explain, a defendant engaged in an unlawful activity is
not necessarily disqualified from seeking self-defense immunity under
certain provisions of the “Stand Your Ground” law, Florida Statutes
Chapter 766. We recede from any language in State v. Hill suggesting the
contrary.

                                State v. Hill
   To better understand the present posture of this case, we must begin
with State v. Hill, where the circumstances and procedural history
underlying this same prosecution were discussed:

          The defendant was charged by information with aggravated
      battery with a firearm (count I), carrying a concealed firearm
      (count II), felon in possession of a firearm or ammunition
      (count III), and retaliation against a witness (count IV). Prior
      to trial, the defendant filed a motion to dismiss count I,
      alleging that his use of force that led to the charge was
      justified under the Stand Your Ground law. During the
      hearing on the defendant’s motion, the defendant testified
      that he was involved in an altercation with Anton Peavy and
      Andre Solomon regarding a woman with whom he had been
      sexually involved.      Peavy and Solomon approached the
      defendant while he was sitting on his porch and began
      questioning him. Solomon had a gun and the two men were
      much larger in size than the defendant. According to the
      defendant, Peavy “snapped” and both Peavy and Solomon
      “rushed” him. The defendant could not flee because he was
      cornered on the porch. The defendant pulled out a gun that
      he had in his pocket and shot Peavy once in the stomach. The
      defendant had previously been convicted of two felonies. 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 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.

Id. at 435 (emphasis added). The State argued that the defendant, a
convicted felon, was not entitled to immunity because he was engaged in
unlawful activity by having possession of the firearm. The trial court’s

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order granting the motion to dismiss rejected this argument and found
that the “unlawful activity” exception in this statute applies only to a
separately-charged forcible felony and does not include other 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. We explained:

         This court recently held that “possession of a firearm by a
      convicted felon qualifies as ‘unlawful activity’ within the
      meaning of the Stand Your Ground law.” Dorsey v. State, 74
      So. 3d 521, 527 (Fla. 4th DCA 2011). As such, the defendant’s
      crime of possession of a firearm by a convicted felon precludes
      him from seeking immunity under the Stand Your Ground law.
      Here, the defendant used the very instrumentality that he was
      not lawfully allowed to possess to injure his alleged assailant.

Id. (emphasis added).

                                  Hill v. State

    On remand, the defendant again moved to dismiss, but this time cited
section 776.012(1) as the basis for claiming justifiable use of deadly force
and seeking immunity.1 Section 776.012(1) provides that 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. Nevertheless, the trial court found that this court’s
decision in State v. Hill precluded consideration of the defendant’s motion
due to the language in the opinion prohibiting a felon in possession of a
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).

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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). Chapter 776 was significantly revamped in 2005
and, since then, has been generally referred to as the “Stand Your Ground”
law. Ch. 2005-27, §§ 1–4, at 200–02, Laws of Fla. Section 776.012,
Florida Statutes (2009), sets out when the use of force, including deadly
force, in defense of person is permissible and provides:

      776.012. Use of force in defense of person.

         A person 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. However, a person is justified in the use of
      deadly force and does not have a duty 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; or

        (2) Under those circumstances permitted pursuant to s.
      776.013.

(emphasis added). The 2005 Stand Your Ground amendments, which are
at the center of this controversy, added the italicized language above to
this section. Ch. 2005–27, Laws of Fla. 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”). Subsection (1)
establishes a presumption that a person has the requisite fear necessary
to use deadly force in certain circumstances—such as when an intruder
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. Stat. (2009).

    Subsection (3) extends the so-called Stand Your Ground protections
from the home to any other place that the person attacked has a right to
be and, similar to subsection (2)(c), does not apply if the person attacked
is engaged in an unlawful activity:

      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. (2009) (emphasis added). The parameters for
permissible use of force in this section are very similar to those in section
776.012(1), and both do away with the duty to retreat altogether in similar,
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). Accord Little v. 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. And, section
776.032(1) expressly extends immunity from prosecution to those who use

                                     5
defensive force as permitted by section 776.012. Because Chapter 776
contains separate provisions addressing the permissible use of force, each
must be analyzed individually. In State v. Wonder, 128 So. 3d 867, 870
(Fla. 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 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.” 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. We are not at liberty, however, to rewrite
the statute.


2 The Second District certified conflict with Hill “[t]o the extent that the . . .
decision . . . can be read as holding that a defendant who is engaged in an
unlawful activity is not entitled to immunity under section 776.032(1).” Little,
111 So. 3d at 222. This opinion should eliminate any perceived conflict between
our courts’ positions on this issue.

                                        6
   There is no clear indication anywhere in the chapter that the right to
seek immunity from prosecution under section 776.012 is limited to those
not engaged in unlawful activity. 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. Little, 111 So. 3d at 223 (Northcutt, J., concurring) (citing §
775.021(1), Fla. Stat. (2009)).

    We note that section 776.012 was recently amended and section
776.012(2) now reads in part that “[a] person who uses or threatens to use
deadly force in accordance with this subsection does not have a duty to
retreat and has the right to stand his or her ground if the person 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.” (emphasis added). See
Ch. 2014-195, § 3, 2014 Fla. Sess. Law Serv. (West) (to be codified at §
776.012, Fla. Stat.). The effective date of the new amendment is June 20,
2014. Id. We believe that the legislature’s insertion of the above-
emphasized language in the statute supports our conclusion in this case.
It is a well-established presumption that the legislature intends to change
the law when it amends a statute. See Mikos v. Ringling Bros.–Barnum &
Bailey Combined Shows, Inc., 497 So. 2d 630, 633 (Fla. 1986) (“[T]here is
a strong presumption that, when the legislature amends a statute, it
intends to alter the meaning of the statute.”); Capella v. City of Gainesville,
377 So. 2d 658, 660 (Fla. 1979) (“When the legislature amends a statute
by omitting words, we presume it intends the statute to have a different
meaning than that accorded it before the amendment.”). We also recognize
that, at times, a mere change in the language of a statute “does not
necessarily indicate an intent to change the law” because the intent may
be to clarify what was doubtful and to erase misapprehension as to
existing law. State ex rel. Szabo Food Servs., Inc. of N.C. v. Dickinson, 286
So. 2d 529, 531 (Fla. 1973). In the instant case, however, the existing
statutory language was clear, and there was no doubt and no conflict in
the case law as all of the reported cases which directly addressed the issue
reached the same conclusion as to the correct interpretation of Florida
Statutes section 776.012. See Little; Wonder.

                                 Conclusion

  In summary, Hill is not precluded from claiming justifiable use of force
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. On remand, the trial court shall determine
whether Hill was justified in using deadly force under section 776.012(1),
and, therefore, entitled to immunity from prosecution pursuant to section
776.032.

    Petition granted.

DAMOORGIAN, C.J., WARNER, GROSS, TAYLOR, MAY, CIKLIN, GERBER, LEVINE,
CONNER, FORST and KLINGENSMITH, JJ., concur.

                               *         *          *

    Not final until disposition of timely filed motion for rehearing.




3 We acknowledge that we adhered to the holding 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.

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