               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,                               )
                                             )
              Petitioner,                    )
                                             )
v.                                           )              Case No. 2D16-29
                                             )
STATE OF FLORIDA,                            )
                                             )
              Respondent.                    )
                                             )

Opinion filed April 22, 2016.

Petition Alleging Ineffective Assistance
of Appellate Counsel. Hillsborough County;
Ashley B. Moody, Judge.

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

Pamela Jo Bondi, Attorney General,
Tallahassee, and Brandon R. Christian,
Assistant Attorney General, Tampa, for
Respondent.


PER CURIAM.


              A jury convicted Trevor Dooley as charged of manslaughter with a

weapon, improper exhibition of a dangerous weapon or firearm, and open carrying of a

weapon, and this court affirmed his convictions on direct appeal. See Dooley v. State,

151 So. 3d 1243 (Fla. 2d DCA 2014) (table decision). Subsequently, Dooley filed a
petition pursuant to Florida Rule of Appellate Procedure 9.141(d), arguing that his

appellate counsel was ineffective for failing to argue on direct appeal that the jury

instruction on justifiable use of deadly force was fundamentally erroneous. The State

correctly concedes that appellate counsel rendered ineffective assistance when he

failed to raise this issue on appeal. See Downs v. Moore, 801 So. 2d 906, 910 (Fla.

2001) (stating that appellate counsel can be deemed ineffective for failing to raise an

issue on appeal that presents a question of fundamental error). We grant Dooley's

petition.

              At trial, Dooley testified that he intentionally shot the victim in self-defense.

Thus, the trial court instructed the jury on justifiable use of deadly force.1 The

instruction contained the following language:

                      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. . . .
              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.

The State relied on this language in arguing to the jury that Dooley was not entitled to

stand your ground immunity in part because when he showed the victim his gun, he

committed the crime of unlawful exhibition of a weapon.


              1
               In 2005, the Florida Legislature substantially amended the affirmative
defense of justifiable use of force by abrogating the common law duty to retreat before
resorting to deadly force and by enacting section 776.032, which grants immunity from
criminal prosecution and civil action to those who use force justifiably in self-defense.
Section 776.032 was amended effective June 17, 2014, to provide immunity to those
who use or threaten to use force as permitted in sections 776.012, 776.013, or 776.031.
Ch. 2014-195, § 6, at 2594-95, Laws of Fla. Collectively, the amendments are called
the Stand Your Ground Law.




                                             -2-
              Dooley contends that the instruction and the State's argument were

erroneous because at the time of the offense in 2010 and at the time of trial in 2012,

sections 776.032(1) and 776.012, Florida Statutes (2010), did not condition stand your

ground immunity on whether the defendant was engaged in unlawful activity. Moreover,

on April 10, 2013, months before appellate counsel filed the initial brief on December

16, 2013, this court held that sections 776.032(1) and 776.012(1) permit a person

engaged in unlawful activity to claim stand your ground immunity. Little v. State, 111

So. 3d 214, 221-22 (Fla. 2d DCA 2013) (holding that Little's status as a felon in illegal

possession of a firearm did not preclude his claim of immunity under section

776.012(1)).2 Dooley argues that the erroneous instruction negated his defense and if

this issue had been brought to this court's attention, the result of his appeal would have

been different.

              The State concedes that Dooley's appellate counsel was ineffective,

noting that Dooley was entitled to an accurate instruction regarding his sole defense

and that the prosecutor's reliance on the erroneous instruction exacerbated the error in

the instruction. See Rios, 143 So. 3d at 1171 (stating that the prosecutor's reliance on

an improper instruction during closing argument supported the conclusion that the

instruction constituted fundamental error). We agree with Dooley's argument and the

State's concession of error, and we grant Dooley's petition. Because a new appeal




              2
                 In addition, before this court affirmed Dooley's direct appeal, the Fourth
District relied on Little in holding that jury instructions were fundamentally erroneous.
Dorsey v. State, 149 So. 3d 144, 147 (Fla. 4th DCA 2014); Rios v. State, 143 So. 3d
1167, 1170 (Fla. 4th DCA 2014).




                                            -3-
would be redundant in this case, we reverse Dooley's manslaughter conviction, vacate

his sentence for the offense, and remand for a new trial.

             Petition granted.


KELLY, LaROSE, and LUCAS, JJ., Concur.




                                          -4-
