                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

MICHAEL TRAMEL,                      NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D13-2285

STATE OF FLORIDA,

      Appellee.


_____________________________/

Opinion filed May 12, 2015.

An appeal from the Circuit Court for Duval County.
Kevin A. Blazs, Judge.

Nancy A. Daniels, Public Defender, and Courtenay H. Miller, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

      Michael Tramel seeks reversal of his convictions and sentences for attempted

second-degree murder and aggravated battery with a deadly weapon raising several
issues.     We affirm the aggravated battery conviction and sentence without

discussion. However, finding fundamental error in the jury instructions given on the

justifiable use of deadly force, we reverse the attempted second-degree murder

conviction and sentence, and remand for a new trial on that count.

         According to witnesses at Tramel’s trial, Tramel fought with and stabbed

victim Jonathan Key during the funeral for Tramel’s half-brother, Enoch. Tramel

and Key got into a graveside argument and scuffle, which Tramel initiated by first

pushing then punching Key. The fight was broken up by fellow mourners. Several

witnesses testified they saw Tramel in possession of a small knife or a pocketknife

during the fight. After Tramel and Key were separated, Tramel went to his car and

returned with what some witnesses testified was another, larger knife. The fight

between the two men resumed, and ended with Key being stabbed. Testifying in

his own defense, Tramel said that it was Key who initiated the first altercation, that

Key had a knife, that Tramel armed himself with a knife after the fight broke up

when he became aware Key and others were chasing him, that Key reinitiated the

fight, and that he did not purposely stab Key.

         Tramel claimed self-defense pursuant to the “stand your ground” law.1 In

accordance with the discussion between the parties and the court during the charge




1
    See §776.013(3), Fla. Stat. (2011).
                                          2
conference, the trial court instructed the jury as follows, 2 in pertinent part, regarding

the use of deadly force in self-defense and the duty to retreat:

                An issue in this case is whether the Defendant acted in
                self-defense. It is a defense to the offense with which
                MICHAEL GARRICK TRAMEL is charged if the injury
                to Jonathan Key resulted from the justifiable use of deadly
                force.

                “Deadly force” means force likely to cause death or great
                bodily harm.

                A person is justified in using deadly force if he reasonably
                believes that such force is necessary to prevent imminent
                death or great bodily harm to himself or another.

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

                MICHAEL GARRICK TRAMEL 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 Jonathan Key.

                b. In good faith, the Defendant withdrew from physical
                contact with Jonathan Key and clearly indicated to
                Jonathan Key that he wanted to withdraw and stop the use
                of deadly force, but Jonathan Key resumed the use of
                deadly force.

                ...



2
    See Fla. Std. Jury Instr. (Crim.) 3.6(f).
                                                3
             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.

             If you find that the Defendant who because of threats or
             prior difficulties with Jonathan Key had reasonable
             grounds to believe that he was in danger of death or great
             bodily harm at the hands of Jonathan Key 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 Jonathan
             Key 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.

      Relying on this court’s decision in Floyd v. State, 151 So. 3d 452 (Fla. 1st

DCA 2014), rev. granted, ____ So. 3d ____, 2014 WL 7251662 (Fla. Dec. 16, 2014),

Tramel argues the trial court gave conflicting instructions when it told the jury both

that he had no duty to retreat in the face of imminent death or great bodily harm, and

that he had to exhaust every reasonable means to escape danger before using deadly

force. In doing so, he argues, the court committed fundamental error.

       “[F]or 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.’” Garzon v. State,

980 So. 2d 1038, 1042 (Fla. 2008) (quoting Brown v. State, 124 So. 2d 481, 484

(Fla. 1960)). “In determining whether the jury instructions constituted fundamental
                                            4
error, we must consider ‘the effect of the erroneous instruction in the context of the

other instructions given, the evidence adduced in the case, and the arguments and

trial strategies of counsel.’” Floyd, 151 So. 3d at 454 (citing Smith v. State, 76 So.

3d 379, 383 (Fla. 1st DCA 2011)).

      As in this case, the defendant in Floyd claimed self-defense under the “stand

your ground” law, and the trial court gave the standard justifiable-use-of-deadly-

force instructions that (1) the use of deadly force was not justified if the defendant

initially provoked the use of force unless he exhausted every reasonable means to

escape the danger and (2) if the defendant was not engaged in an unlawful activity

and attacked in a place he had a right to be, he had no duty to retreat and could stand

his ground with force. Floyd at 453-54. On appeal from his convictions, Floyd

argued the first instruction negated the second one because the jury was told he had

no duty to retreat, on one hand, but on the other, he had to exhaust every reasonable

means of escape. Id. at 454. We agreed, reasoning:


             [T]he jury was instructed that if the use of deadly force is
             necessary to prevent imminent death or great bodily harm
             to oneself or others, then deadly force is justified without
             regard to any effort to retreat so long as the defendant is
             not engaged in unlawful activity. A defendant may not use
             deadly force if the defendant provoked another showing
             force; however, if the defendant provoked another, who
             then uses force so great as to put the defendant in fear of
             death or great bodily harm, then the defendant may use
             deadly force, but only if the defendant has first exhausted
             every means of escape. In effect, the jury instruction here
                                          5
             provided that Floyd did not have to retreat before meeting
             deadly force with deadly force if in fear of death or great
             bodily harm and did have a duty to try to retreat before
             using deadly force if in fear of death or great bodily harm.

Id. (emphasis in original). We concluded the contradiction in the instructions

effectively negated possible application to Floyd’s only defense, resulting in

fundamental error and requiring reversal of Floyd’s convictions. Id. (citing Carter

v. State, 469 So. 2d 194, 196 (Fla. 2d DCA 1985)).

      Our reasoning and conclusion in Floyd dictate the same result in this factually

indistinguishable case. The State contends that Tramel asserted defenses at trial

other than self-defense, and therefore, even if the instructions were inconsistent,

Tramel did not lose his sole defense and the error is not fundamental. The trial

transcript does not support the State’s argument, however. The only defense clearly

asserted by Tramel and argued by defense counsel was self-defense. Based on our

decision in Floyd, 3 we conclude the justifiable-use-of-deadly-force instructions

given in this case inconsistently provided that Tramel did not have to retreat before

meeting deadly force with deadly force if in fear of death or great bodily harm and

did have a duty to try to retreat before using deadly force if in fear of death or great



3
  The Florida Supreme Court, having granted the State’s petition for discretionary
review of the decision in Floyd, issued an order on December 11, 2014, granting the
State’s motion to recall this court’s mandate, and staying proceedings until
disposition of the petition for review. Order, State v. Floyd, No. SC14-2162 (Fla.
Dec. 11, 2014) (order staying proceedings).
                                          6
bodily harm. This inconsistency rendered the instructions inapplicable to Tramel’s

sole defense, and consequently, fundamental error occurred. For this reason, we

reverse Tramel’s conviction and sentence for attempted second-degree murder, and

remand for a new trial on that count only.

      AFFIRMED, in part; REVERSED, in part; and REMANDED.



ROBERTS, MARSTILLER and SWANSON, JJ., CONCUR.




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