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

                          JOHN THOMAS DORSEY,
                                Appellant,

                                        v.

                            STATE OF FLORIDA,
                                 Appellee.

                                No. 4D12-3891

                               [October 8, 2014]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Charles E. Burton, Judge; L.T. Case No. 2012-CF-007863-
AXXX-MB.

   Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public
Defender, West Palm Beach, for appellant.

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

PER CURIAM.

    Thomas Dorsey (“defendant”) appeals his conviction and sentence on
two counts of manslaughter. Because we find the jury instructions given
at trial regarding Florida’s “Stand Your Ground” law created fundamental
error, we reverse and remand for a new trial.1

   This is defendant’s second appeal. The facts adduced from defendant’s
second trial are nearly identical to the facts of defendant’s first trial, as
detailed in this court’s prior opinion. In the prior opinion, this court
reversed defendant’s convictions for second-degree murder because of
insufficient evidence and improper jury instructions and remanded for a


1Defendant also appealed the trial court’s refusal to allow him to cross-examine
a state witness regarding the witness’s knowledge of prior bad acts committed by
one of the victims. We find no abuse of discretion in the trial court’s ruling and
affirm the court’s ruling on this issue.
new trial on manslaughter. Dorsey v. State, 74 So. 3d 521 (Fla. 4th DCA
2011).

   At the close of the second trial and before deliberations, the trial court
informed the jury that “whether the Defendant acted in self-defense” was
an issue in the case and instructed the jury as follows:

          Now, if you find the Defendant was engaging in an unlawful
      activity or was attacked in a place where he did not have the
      right to be, then you must consider if the Defendant had a duty
      to retreat. If the Defendant was placed in a position of
      imminent danger of death or great bodily harm and it would
      have increased his own danger to retreat, then his use of force
      likely to cause death or great bodily harm was justifiable.
      Now, a felon in possession of a firearm constitutes unlawful
      activity.

(emphasis added). Defendant did not object to the instruction. The jury
returned a verdict of guilty as charged.

    The state asserts that this court should decline to address the issue
under the law of the case doctrine. The doctrine provides that “all
questions of law which have been decided by the highest appellate court
become the law of the case which, except in extraordinary circumstances,
must be followed in subsequent proceedings, both in the lower and the
appellate courts.” Brunner Enters., Inc. v. Dep’t of Rev., 452 So. 2d 550,
552 (Fla. 1984). We find that the doctrine does not apply here, because
the question of law raised in this appeal was not “actually presented and
considered on [the] former appeal,” as required for application of the
doctrine. Fla. Dep’t of Transp. v. Juliano, 801 So. 2d 101, 106 (Fla. 2001)
(citation and emphasis omitted).

   Defendant argues that the trial court erred by instructing the jury that
being a felon in possession of a firearm was “unlawful activity,” and that if
he was engaged in unlawful activity, the jury had to consider his duty to
retreat. Defendant claims that under section 776.012(1), Florida Statutes
(2012), he had no duty to retreat even if engaged in an unlawful activity.

   Because defendant did not object to the instruction, it “can be raised
on appeal only if fundamental error occurred.” State v. Delva, 575 So. 2d
643, 644 (Fla. 1991). “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


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assistance of the alleged error.” Barnett v. State, 121 So. 3d 643, 646-47
(Fla. 4th DCA 2013) (citation omitted).

    Section 776.012, Florida Statutes (2012), provides:

          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 . . . .

   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 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.

    In Rios v. State, 143 So. 3d 1167 (Fla. 4th DCA 2014), the trial court
ruled that the defendant, who was carrying a concealed weapon, was
engaged in “unlawful activity” and refused to give an instruction on his
“right to stand his ground.” Instead, the court instructed the jury
regarding the defendant’s duty to retreat. On appeal, the defendant raised


2 As noted in Rios v. State, 143 So. 3d 1167 (Fla. 4th DCA 2014), the recently
amended section 776.012, effective June 20, 2014, applies only to “[a] person . .
. not engaged in a criminal activity.” Id. at 1170 n.3 (citing § 776.012, Fla. Stat.
(2014)). Thus, defendant would not get the benefit of Stand Your Ground under
the amendment. “However, because this affirmative defense is substantive in
nature, the change in law would not affect Defendant’s case,” as he will be entitled
to the 2012 version on re-trial. Id. (citing Smiley v. State, 966 So. 2d 330, 335-
36 (Fla. 2007)).

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an unpreserved argument that he had no such duty under section
776.012(1) of Florida’s Stand Your Ground law. 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. at 1170. See also Hill v. State, 143 So. 3d
981, 985 (Fla. 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. Wonder, 39
Fla. L. Weekly D1695 (Fla. 4th DCA Aug. 13, 2014) (explaining that a
person engaged in an unlawful activity “would look to section 776.012(1)
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.       As in Rios, the instruction’s reference to the
defendant’s “duty to retreat” was “not necessary because Defendant did
not have a duty to retreat under Florida’s Stand Your Ground law,” and it
“effectively eliminated Defendant’s sole affirmative defense.” 143 So. 3d at
1170; see also Richards v. State, 39 So. 3d 431, 434 (Fla. 2d DCA 2010)
(finding that jury instructions referencing a “duty to retreat” rose “to the
level of fundamental error” where the defendant’s “sole defense at trial was
that he acted in self-defense” thereby entitling him to a Stand Your Ground
defense).

   Accordingly, we reverse and remand for a new trial.

   Reversed and remanded.

STEVENSON, MAY and LEVINE, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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