               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT


TREVOR DOOLEY,                               )
                                             )
              Appellant,                     )
                                             )
v.                                           )       Case No. 2D17-368
                                             )
STATE OF FLORIDA,                            )
                                             )
              Appellee.                      )
                                             )

Opinion filed April 3, 2019.

Appeal from the Circuit Court for
Hillsborough County; Ashley Moody, Judge.

William R. Ponall of Ponall Law, Maitland,
for Appellant.

Ashley Moody, Attorney General,1
Tallahassee; Brandon R. Christian and
Bilal Ahmed Faruqui (substituted as
counsel of record) Assistant Attorneys
General, for Appellee.


LUCAS, Judge.

              Trevor Dooley and David James got into an argument over whether a

teenager should be allowed to skateboard on a basketball court. By the end of the



              1Briefing
                      and argument in this case were concluded prior to Ashley
Moody’s election as Attorney General.
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). Initially, the State conceded error on this

issue, but following the issuance of an opinion from this court remanding the case for a

new trial, the State filed a motion for rehearing withdrawing its concession. This court,

in turn, withdrew its prior opinion and, pursuant to Florida Rule of Appellate Procedure

9.141(d), granted Mr. Dooley's petition for a new appeal solely as to the issue of

fundamental error in the jury instructions. See Dooley v. State, 206 So. 3d 87 (Fla. 2d

DCA 2016).

              With the benefit of a record, briefing, and oral argument, we must now

agree with Mr. Dooley that the instructions provided to his jury concerning his defense

to the charges of manslaughter and openly displaying a firearm were fundamentally

erroneous. We explain why below.

                                            I.

              On September 26, 2010, Mr. James and his then eight-year-old daughter

were playing basketball at a park in the Twin Lakes subdivision in Valrico. A couple

was playing tennis on an adjacent tennis court. And a teenager, S.A., was

skateboarding. S.A. had asked Mr. James if he had any objection to his skateboarding,

and Mr. James replied he did not.

              Mr. Dooley lived in a house across the street from the park. Spotting S.A.

from his garage, he began yelling at S.A., "You're not allowed to skateboard," or words

to that effect. As S.A. started to leave, Mr. James responded to Mr. Dooley to show him




                                           -2-
where the signs prohibiting skateboarding were, because he had told S.A. it was alright

with him for S.A. to keep skating. Mr. Dooley returned to his garage but then emerged a

couple of minutes later and crossed the street to the edge of the basketball court. Mr.

James approached Mr. Dooley, and the two men had a terse and heated argument.

According to the testimony of the couple on the tennis court (who, by this time, had

stopped playing to watch what was happening), Mr. Dooley lifted his shirt, revealing the

butt of a gun, and said "fuck you" to Mr. James. All the witnesses who testified,

including Mr. Dooley who testified in his own defense, agreed that Mr. Dooley then

turned his back on Mr. James and began to walk away toward his house. He made it

about four or five steps when Mr. James grabbed him from behind and turned him

around to continue the argument. The testimony was in conflict about what precisely

happened next, but suffice to say, the two began to wrestle. During the struggle, Mr.

Dooley drew his Kel-Tec 32 semiautomatic pistol from his pants, Mr. James tried to grab

it with a hand, and Mr. Dooley fired a single shot. The bullet went through Mr. James'

chest, and he died shortly thereafter.

              Mr. Dooley was subsequently charged with one count of manslaughter

with a weapon under sections 782.07(1) and 775.087(1)(b), Florida Statutes (2010), one

count of improper exhibition of a firearm pursuant to section 790.10, Florida Statutes

(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. 776.031 is justified in such conduct and is immune from criminal

prosecution and civil action for the use or threatened use of such force by the person . .




                                           -3-
. ."), which the circuit court denied following an evidentiary hearing.2 His case

proceeded to a jury trial on November 13, 2012, and the defense was again brought

before the jury.

              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. In pertinent part, it read as follows:

                      An issue in this case is whether the defendant acted
              in self-defense. It is a defense to the offense with which
              Trevor E. Dooley is charged if the death of David Kenneth
              James resulted from the justifiable use of deadly force.

                      ....

                      The use of deadly force is justifiable only if the
              defendant reasonably believes that the force is necessary to
              prevent imminent death or great bodily harm to himself while
              resisting

                      1)     Another's attempt to murder him or

                      2)     Any attempt to commit aggravated battery on a
                             person 65 years of age or older or aggravated
                             battery upon him.

                      Additionally, a person is justified in using deadly force
              if he reasonably believes that such force is necessary to
              prevent

                      1)     Imminent death or great bodily harm to himself,
              or




              2Pursuant  to Dennis v. State, 51 So. 3d 456, 463 (Fla. 2010), Mr. Dooley
had filed a motion to dismiss, which precipitated what is now often referred to as a
"Stand Your Ground hearing" before the presiding judge. We make no comment about
any aspect of that hearing.

                                             -4-
       2)     The imminent commission of aggravated
battery on a person 65 years of age or older or aggravated
battery against himself.

       However, the use of deadly force is not justifiable if
you find:

       1)     Trevor E. Dooley initially provoked the use of
              force against himself unless:

       a)     The force asserted toward the defendant was
              so great that he reasonably believed that he
              was in imminent danger of death or great bodily
              harm and had exhausted every reasonable
              means to escape the danger, other than using
              deadly force on David Kenneth James; or

       b)     In good faith the defendant withdrew from
              physical conduct with David Kenneth James
              and clearly indicated to David Kenneth James
              that he wanted to withdraw and stop the use of
              deadly force but David Kenneth James
              continued or resumed the use of force.

       In deciding whether the defendant was justified in
using deadly force you must judge him by the circumstances
by which he was surrounded at the time the force was used.
The danger facing the defendant need not have been actual;
however, to justify the use of deadly force, the appearance of
danger must have been so real that a reasonably cautious
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.

        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 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 a forcible felony such as aggravated
battery on a person 65 years of age or older or aggravated
battery.




                              -5-
                     ....

                     If you find that the defendant who because of threats
             or prior difficulties with David Kenneth James had reasonable
             grounds to believe he was in danger of death or great bodily
             harm at the hands of David Kenneth James, then the
             defendant had the right to arm himself. However, the
             defendant cannot justify the use of deadly force if after
             arming himself he renewed his difficulty with David Kenneth
             James when he could have avoided the difficulty. Although
             as previously explained, 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.

                     ....

                     If in your consideration of the issue of self-defense,
             you have a reasonable doubt on the question of whether the
             defendant was justified in the use of deadly force, you should
             find the defendant not guilty.

                    However, if from the evidence you are convinced that
             the defendant was not justified in the use of deadly force, you
             should find him guilty if all of the elements of the charge have
             been proved.

(Emphasis added.) The verdict form, which was stipulated between Mr. Dooley and the

State, did not include any special interrogatory findings regarding any aspect of Mr.

Dooley's self-defense claim; rather, it simply asked whether the jury found Mr. Dooley

guilty or not guilty on each of the three charges and whether Mr. Dooley had been

carrying, displaying, using, threatening to use, or attempting to use a firearm in

connection with the manslaughter charge.

              During closing statements, the State and the defense largely focused their

presentations on various disputes in the evidence adduced at trial. However, at one

point, the prosecuting attorney did weigh in on his view of the legal elements underlying

Mr. Dooley's defense:




                                           -6-
              He's in a park with children and he brings a gun and he
              flashes it and then he draws it out. And this is really the
              stand your ground part. 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 meet force with force. . . . Well think
              about it, ladies and gentlemen. If you [are] not engage[d] in
              an unlawful activity, the minute he went into that park and he
              showed that gun to David James and said, "F you. Fuck
              you. Screw you" whatever, he's committed a crime. That's a
              crime. It's called improper exhibition of a weapon. And the
              minute he did that he's not entitled to that stand your ground.
              Because he is no longer engaged in lawful activity. He's
              committing a crime. So that stand your ground that you've
              heard all about, doesn't apply to him because he's already
              violated the law. And ask yourself, and that's part of the law.

(Emphasis added.) Ultimately, the jury found Mr. Dooley guilty of all three counts as

charged.

              In the appeal now before us, Mr. Dooley acknowledges that he did not

raise a substantive objection to the use of Standard Jury Instruction 3.6(f) during his

trial. However, he contends the instruction was fundamentally erroneous because in

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. Dooley argues, there was no such limitation on the defense

available under section 776.012(1). Because the instruction failed to distinguish

between the two statutory sections and their respective elements, the jury was

erroneously led to believe that if indeed Mr. Dooley unlawfully displayed his pistol, he

could not avail himself of any part of his Stand Your Ground defense.

              We must agree with Mr. Dooley's argument.

                                            II.



                                           -7-
              We observe two points at the outset. The parties stipulated to using a

standard jury instruction on the issue of Mr. Dooley's defense. And Mr. Dooley never

raised an objection along the line of the argument he now raises. These are both

important concerns for purposes of Mr. Dooley's appeal, but they are not dispositive.

Although a standard jury instruction such as the one at issue here has something akin

to a presumption of correctness, "the trial judge still retains the responsibility of correctly

charging the jury." State v. Floyd, 186 So. 3d 1013, 1022 (Fla. 2016).3 That

responsibility includes giving instructions that are not "confusing, contradictory, or

misleading." Butler v. State, 493 So. 2d 451, 452 (Fla. 1986). "[T]he yard stick by

which jury instructions are measured is clarity, for jurors must understand fully the law

that they are expected to apply fairly." Floyd, 186 So. 3d at 1018 (quoting Perriman v.

State, 731 So. 2d 1243, 1246 (Fla. 1999)). So, too, while the lack of an objection may

indicate that there is no perceptible problem with a standard instruction, Floyd, 186 So.

3d at 1023, an appellate court can still review the content of a jury instruction for

fundamental error, see Reeves v. State, 647 So. 2d 994, 995 (Fla. 2d DCA 1994) ("[A]

misleading jury instruction constitutes both fundamental and reversible error subject to



              3Pinning  the precise degree of assumed correctness to approved standard
jury instructions seems to be an exercise of elusive measurement. On the one hand,
the Florida Supreme Court has held that standard jury instructions "are published under
this Court's authority and are presumed to be correct." BellSouth Telecomms., Inc. v.
Meeks, 863 So. 2d 287, 292 (Fla. 2003) (citing Freeman v. State, 767 So. 2d 1055,
1071 (Fla. 2000)). On the other hand, that pronouncement has come to be tethered to
so many qualifications it leaves one to wonder whether what remains could truly be said
to be a presumption. In Floyd, for example, the court noted that when it approves a
standard instruction it does not express an opinion on the instruction's correctness, that
standard instructions "serve merely as guidelines that are subject to the trial judge's
modifications," and that the failure to timely object to an instruction may have some
bearing on whether the jury instruction is perceived as confusing or misleading. 186 So.
3d at 1022-23.

                                             -8-
appellate review even in the absence of an objection." (citing Carter v. State, 469 So. 2d

194, 196 (Fla. 2d DCA 1985))). The Florida Supreme Court summarized in Roberts v.

State, 242 So. 3d 296 (Fla. 2018), that

              [i]n order for jury instructions to constitute fundamental error,
              "the error must reach down into the validity of the trial itself
              to the extent that a verdict of guilty could not have been
              obtained without the assistance of the alleged error" and
              "occurs only when the omission is pertinent or material to
              what the jury must consider in order to convict."

Id. 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
              . . . to prevent death or great bodily harm . . . or to prevent
              the commission of a forcible felony." Under section
              776.012(1), a person would have to prove that he or she
              reasonably believed the use of deadly force was "necessary
              to prevent imminent death or great bodily harm . . . 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.

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. See generally Andujar-Ruiz v. State, 205 So. 3d 803,

806-07 (Fla. 2d DCA 2016) ("[B]ecause [Appellant] was entitled to raise a defense

under section 776.012(1), the trial court's instruction that he had a duty to retreat if he

was engaged in unlawful activity effectively deprived [Appellant] of his sole defense and

constituted fundamental error."); Little, 111 So. 3d at 219, 221 (concluding that immunity



                                            - 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 precluded from seeking

immunity because he was engaged in an unlawful activity); McGriff v. State, 160 So. 3d

167, 168 (Fla. 1st DCA 2015) (holding that the trial court abused its discretion when it

instructed the jury that "if [Appellant] was engaged in an unlawful activity, [his] use of

deadly force was not justified if he could have reasonably and safely avoided the use of

deadly force by retreating" because it was an "incorrect statement of then-existing law"

where section 776.012(1) does not provide for a duty to retreat); Miles v. State, 162 So.

3d 169, 171-72 (Fla. 5th DCA 2015) (concluding that the trial court erred in determining

that the defendant was not entitled to immunity because he was engaged in unlawful

activity because "under the prior Stand Your Ground law, a defendant could assert

immunity under section 776.012 even if he or she was engaged in an unlawful act at the

time"); Dorsey v. State, 149 So. 3d 144, 147 (Fla. 4th DCA 2014) (concluding that the

instruction regarding the defendant's duty to retreat was fundamental error because

reference to the defendant's duty to retreat was unnecessary as the defendant did not

have a duty to retreat under section 776.012(1)); Rios v. State, 143 So. 3d 1167, 1170

(Fla. 4th DCA 2014) (holding that the trial court instructing the jury on duty to retreat

was fundamental error because the defendant was entitled to protection of "Stand Your

Ground law" pursuant to section 776.012(1) and the "jury instruction, which was not

necessary because Defendant did not have a duty to retreat under Florida's Stand Your

Ground law, effectively eliminated Defendant's sole affirmative defense").




                                            - 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. Dooley's Stand Your Ground defense were presented together.4

The substance of both sections were essentially lumped together within the same

instruction. Accord Little, 111 So. 3d at 223 (Northcutt, J., concurring) ("[W]hatever we

may or may not think about the existence of 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 State understood the

instruction in presenting closing arguments to the jury.



              4Neither
                     the State nor Mr. Dooley ever moved to sever counts two and
three from the manslaughter charge in count one.
              5In some respects, the confusion here resembles that sometimes seen
with the use of asyndetons—the omission of conjunctive or disjunctive signals within a
list—which "can suggest the essential unity of the items . . . . [or] can also be used to
evoke a sense of disorder." See Encyclopedia of Rhetoric and Composition:
Communication from Ancient Times to the Information Age 41 (Theresa Enos ed.,
1996); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 119 (2012) ("Sometimes drafters will omit conjunctions altogether between
the enumerated items . . . . This technique is termed asyndeton . . . . But because such
a construction could be read as a disjunctive formulation, most drafters avoid it.").
              We would also note that the instruction, as it was given, introduces the
term "duty to retreat" to the jury by stating when that duty (whatever a juror might
understand it to be) would not arise. This lingering reference is likely due to the fact that

                                           - 12 -
              Thus, the instruction, as presented in this case, would lead one to

conclude that Mr. Dooley's right to stand his ground "and meet force with force" was, in

all instances, predicated on whether he had been engaged in unlawful activity. And that

was simply not true under the applicable version of section 776.012(1).6 See Andujar-

Ruiz, 205 So. 3d at 806-07; Little, 111 So. 3d at 221; McGriff, 160 So. 3d at 168; Miles,

162 So. 3d at 171-72; Dorsey, 149 So. 3d at 147; Rios, 143 So. 3d at 1170. Mr. Dooley

would have been deprived of his only defense at trial to the charges of manslaughter

and openly displaying a firearm if the jury concluded, as it ultimately did, that he had

been engaged in unlawful activity when he resorted to using deadly force.

                                            III.

              As the Florida Supreme Court aptly observed in Floyd, "the justifiable use

of force is recognized as a somewhat complex area of law that will necessarily yield

complex jury instructions." 186 So. 3d at 1022. The trial court did not have the benefit




prior to 2005, a "duty to retreat" existed in Florida common law and was formerly a
substantive part of the self-defense instruction. That duty was effectively supplanted by
the Stand Your Ground law. See Kumar v. Patel, 227 So. 3d 557, 559 (Fla. 2017) ("The
Stand Your Ground law in Florida eliminates the common law duty to retreat before
using force in self-defense . . . .").
              6Section  776.012 was amended, effective June 20, 2014, so that that
section would, henceforth, apply only to "[a] person . . . not engaged in a criminal
activity." See ch. 2014–195, § 3, Laws of Fla. We agree with the Fourth District's
conclusion that this amendment was substantive in nature, 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. Dooley's case. Unfortunately,

the instruction that was given improperly conflated, and thereby confused, the statutory

distinctions we discerned in Little. And so we must reverse Mr. Dooley's judgments and

convictions for manslaughter with a weapon and openly carrying a firearm because the

instruction pertaining to his defense to those charges was fundamentally erroneous.

We remand his case for a new trial on those counts.

              However, from our review of the record in this case, we cannot conclude

that this error impacted Mr. Dooley's conviction for improper exhibition of a weapon.7 If,

as it appears, the jury accepted the testimony that Mr. Dooley first flashed the butt of his

pistol at Mr. James in a threatening manner before their argument had turned into an

altercation, then the erroneous Stand Your Ground instruction would not appear to

constitute a defense to that offense. On cross-examination, Mr. Dooley stated

unequivocally that he felt neither alarmed nor threatened by Mr. James when Mr. James

asked to see where the no skateboarding signs were. And none of the remaining



              7Section  790.10 defines improper exhibition of a firearm as follows: "If any
person having or carrying any . . . firearm . . . shall, in the presence of one or more
persons, exhibit the same in a rude, careless, angry, or threatening manner, not in
necessary self-defense, the person so offending shall be guilty of a misdemeanor of the
first degree." Section 790.053(1) prohibits openly carrying a firearm, which is defined as
"openly carry[ing] on or about his or her person any firearm . . . . It is not a violation of
this section for a person licensed to carry a concealed firearm as provided in s.
790.06(1), and who is lawfully carrying a firearm in a concealed manner, to briefly and
openly display the firearm to the ordinary sight of another person, unless the firearm is
intentionally displayed in an angry or threatening manner, not in necessary self-
defense." The State never explained how counts 2 and 3 were distinguished in this
case (and neither party provided us with a copy of the charging instrument in the
record). There were no interrogatory questions within Mr. Dooley's verdict form.
However, it appears clear to us that the conviction for improper exhibition was
predicated on the evidence that Mr. Dooley unlawfully displayed the butt of his pistol in
a threatening manner at Mr. James prior to the physical struggle, which ended when Mr.
Dooley drew his gun and shot Mr. James.

                                           - 14 -
witnesses described Mr. James' actions—prior to the physical altercation with Mr.

Dooley—as threatening. Mr. Dooley has not asserted that the error in this jury

instruction would pertain to count 2 of his criminal prosecution, much less explain how.

Accordingly, we affirm his conviction as to that count.

              Affirmed in part; reversed in part; remanded.




NORTHCUTT and KELLY, JJ., Concur.




                                          - 15 -
