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


                                                  IN THE DISTRICT COURT OF APPEAL

                                                  OF FLORIDA

                                                  SECOND DISTRICT

MAX GARCIA,                                       )
                                                  )
               Petitioner,                        )
                                                  )
v.                                                )    Case No. 2D18-4541
                                                  )
STATE OF FLORIDA,                                 )
                                                  )
               Respondent.                        )
                                                  )

Opinion filed November 27, 2019.

Petition for Writ of Prohibition to the Circuit
Court for Sarasota County; Stephen M.
Walker, Judge.

Victoria E. Hatfield, O'Brien Hatfield, P.A.,
Tampa, for Petitioner.

Ashley Moody, Attorney General,
Tallahassee, and Katie Salemi-Ashby,
Assistant Attorney General, Tampa, for
Respondent.


LaROSE, Judge.

               The State charged Max Garcia with one count of aggravated battery

causing great bodily harm, permanent disability, or permanent disfigurement.

§ 784.045(1)(a)(1), Fla. Stat. (2016). He now seeks a writ of prohibition after the trial

court denied his "Stand Your Ground" motion to dismiss. See §§ 776.012 and 776.032,
Fla. Stat. (2016). Because the trial court's order departs from the essential

requirements of law, we quash the order under our certiorari jurisdiction. See Amy v.

State, 270 So. 3d 1220, 1220 (Fla. 2d DCA 2019) (unpublished opinion) (quashing trial

court's order summarily denying petitioner's motion for immunity from prosecution as a

departure from the essential requirements of law); Jefferson v. State, 264 So. 3d 1019,

1023 (Fla. 2d DCA 2018) (determining that certiorari is the appropriate remedy when

the Stand Your Ground proceeding or the trial court's ruling is flawed by legal error

thereby precluding proper determination on the movant's immunity claim).

                                          Facts

              Mr. Garcia was at a nightclub with his friends, Nicole Gruebmeyer, Halley

Vanselow, and Michael Maier. While at the club, Ms. Gruebmeyer met the victim,

Jordan Melchild. Mr. Melchild invited Ms. Gruebmeyer and Ms. Vanselow to his house.

Ms. Gruebmeyer asked if Mr. Garcia and Mr. Maier could come; Mr. Melchild agreed.

Mr. Melchild also invited his friend, Tyler Cooper, to stop by. Mr. Cooper met the group

later at Mr. Melchild's house.

              At Mr. Melchild's house, the group was drinking outside. Another person,

Mark Lapp, arrived. Ms. Gruebmeyer, Ms. Vanselow, and Mr. Lapp went into the house

and locked themselves in a bathroom, apparently to use drugs. Mr. Melchild went into

the house to see what they were doing; Mr. Cooper followed him. Mr. Melchild became

angry and dragged Mr. Lapp out of the house.

              Mr. Melchild went back inside. Mr. Garcia and Mr. Maier were also inside

the house. Mr. Melchild asked them to leave. Mr. Garcia stated that he was waiting for

Ms. Gruebmeyer because he was her ride. Mr. Melchild repeatedly asked Mr. Garcia to



                                           -2-
leave; he eventually grabbed Mr. Garcia to escort him out. Mr. Garcia resisted and tried

to restrain Mr. Melchild. Both men fell to the ground. Mr. Melchild was on top of Mr.

Garcia, who was on his back pressed into a corner between a wall and the bathroom

door. Mr. Melchild testified that he was not punching or kicking Mr. Garcia.

              In contrast, Mr. Garcia testified that after he and Mr. Melchild fell to the

ground, Mr. Melchild started slamming his head into the ground. Mr. Cooper entered

the fray, punching Mr. Garcia in the face. Mr. Garcia lost his grip on Mr. Melchild and

Mr. Melchild started hitting him again. As Mr. Melchild and Mr. Cooper continued

punching him, Mr. Garcia saw Mr. Maier coming for Mr. Cooper. Mr. Garcia testified

that his head was getting slammed into the ground, he was bleeding, dizzy, and he had

two men punching him. At this point, Mr. Garcia grabbed Mr. Melchild's head and

pushed his thumb into Mr. Melchild's eye. He was scared and thought it necessary to

incapacitate Mr. Melchild because he had no chance of escape.

              Mr. Garcia moved to dismiss the charge against him based on the

statutory immunity provided by sections 776.032 and 776.012. In his motion, Mr. Garcia

argued that Mr. Melchild was the initial aggressor. Mr. Garcia asserted that he was

justified in using force to prevent further injury to himself. After an evidentiary hearing,

the trial court denied the motion, ruling that: (1) Mr. Garcia was not entitled to immunity

because Mr. Melchild used lawful force to remove a trespasser; (2) there was no

evidence of any threat of imminent death or great bodily harm to Mr. Garcia, especially

where the initial force used by Mr. Melchild was lawful; and (3) Mr. Garcia was engaged

in criminal trespass and was not in a place where he had a right to be.




                                            -3-
                                         Analysis

             Generally, a petition for writ of prohibition is the proper method for

reviewing the denial of a motion to dismiss under the Stand Your Ground law. See

Jefferson, 264 So. 3d at 1023 ("[P]rohibition is the appropriate remedy when the

appellate court determines on the merits that the defendant is entitled to immunity under

the Stand Your Ground law, the reason being that the lower court has no authority to

proceed against an immunized defendant."); Little v. State, 111 So. 3d 214, 216 n.1

(Fla. 2d DCA 2013). But, because the trial court erred in its construction of the Stand

Your Ground statute, we are unable to determine whether Mr. Garcia is entitled to

immunity on the merits. Thus, prohibition is not the appropriate vehicle under which to

proceed. We best proceed under our certiorari jurisdiction. Jefferson, 264 So. 3d at

1023.

              Section 776.032(1) provides immunity to a person using force as

permitted in sections 776.012, 776.013, or 776.031. Section 776.012(1) authorizes the

use of nondeadly force when a defendant reasonably believes such force is necessary

to defend himself or herself against another's imminent use of unlawful force. There is

no duty to retreat before using nondeadly force under section 776.012(1). Under

section 776.012(2), a defendant 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 to prevent the imminent commission of a forcible felony. Under section

776.012(2), a person who uses deadly force does not have a duty to retreat and has the

right to stand his or her ground if he or she is not engaged in a criminal activity and is in

a place where he or she has a right to be.



                                             -4-
              An objective standard applies in evaluating the facts presented in a Stand

Your Ground motion to dismiss. Mobley v. State, 132 So. 3d 1160, 1164 (Fla. 3d DCA

2014). The trial court must determine whether, based on the circumstances as they

appeared to the defendant, a reasonable and prudent person situated in the same

circumstances and knowing what the defendant knew would have used the same force

as did the defendant. Toledo v. State, 452 So. 2d 661, 662-663 (Fla. 3d DCA 1984).

              The trial court found that any force used by Mr. Melchild was lawful to

remove Mr. Garcia, a trespasser. In the trial court's view, Mr. Garcia was not entitled to

immunity under section 776.012(1) because he was not defending against the imminent

use of unlawful force. As the State concedes, these findings are wrong as a matter of

law.

              The trial court cited to sections 776.031(1) and 776.013(1) when it found

that Mr. Melchild's initial use of force was lawful. Section 776.031(1) governs the use of

nondeadly force in defense of property; a person is justified in using nondeadly force

against another when that person reasonably believes such conduct is necessary to

terminate the other's trespass on either real property other than a dwelling or personal

property lawfully in his possession. § 776.031(1) (emphasis added); see also

§ 776.013(5)(a) (defining "dwelling"). Section 776.031(1) does not apply to a dwelling

and is inapplicable to Mr. Melchild's initial use of force.

              Section 776.013 provides that a person who is in a dwelling or residence

is permitted to use nondeadly force against another if the person reasonably believes

such conduct is necessary to defend against the other's imminent use of unlawful force.




                                             -5-
See § 776.013(1)(a). No evidence suggested that Mr. Melchild's initial use of force was

necessary to defend against any imminent use of unlawful force by Mr. Garcia.

              The trial court also concluded that section 776.012(2) only applies if the

person using deadly force is not engaged in a criminal activity and is in a place where

he has a right to be. According to the trial court, Mr. Garcia was not entitled to immunity

under section 776.012(2) because he was a trespasser at the moment leading to the

affray.

              A defendant who is engaged in unlawful activity or who is in a place where

he does not have a right to be, has a duty to retreat and must use all reasonable means

in his power, consistent with his own safety, before his use of deadly force will be

justified under the Stand Your Ground law. See Jenkins v. State, 942 So. 2d 910, 914

(Fla. 2d DCA 2006) (explaining the duty to retreat means to "retreat to the wall" and

includes the use of all reasonable means, consistent with the defendant's own safety, to

avoid the danger and to avert the necessity of taking human life); Wyche v. State, 170

So. 3d 898, 905 (Fla. 3d DCA 2015) (holding if a person is engaged in unlawful conduct

or initially provoked the use of force against himself, that person has the duty to retreat

and/or withdraw from physical contact with the assailant before he may rely on the

defenses contained in chapter 776). A defendant is not foreclosed from defending

himself simply because he is in a place where he does not have the right to be, but he

must first attempt to retreat from the situation if he can do so safely. Thompson v.

State, 552 So. 2d 264, 266 (Fla. 2d DCA 1989) (holding if a person is in a place where

he does not have a right to be, he has a duty to retreat before using deadly force on the




                                            -6-
attacker, but deadly force is justifiable if retreat would be futile). The trial court's finding

failed to consider whether Mr. Garcia was able to retreat prior to his use of force.

              Finally, the trial court failed to make any finding regarding whether Mr.

Garcia reasonably believed his use of force was necessary to prevent imminent death

or great bodily harm, or to prevent the commission of a forcible felony. To make that

determination, the trial court must consider the circumstances Mr. Garcia faced. See

Garrett v. State, 148 So. 3d 466, 468 (Fla. 1st DCA 2014). "[T]o 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." Id. Although the trial

court found no competent, substantial evidence of a threat of imminent death or great

bodily harm to Mr. Garcia, it did not consider whether, based on the circumstances as

they appeared to Mr. Garcia when he acted, a reasonably prudent person would have

used the same force. Nor did the trial court make any findings regarding whether Mr.

Garcia reasonably believed his use of force was necessary to defend against the

imminent commission of a forcible felony.

                                         Conclusion

              Because the trial court erred in its legal conclusion that Mr. Melchild's

initial use of force was lawful, which prevented Mr. Garcia from asserting immunity

under section 776.012(1), and in its conclusion that section 776.012(2) applies only if

the defendant was in a place where he had a right to be at the time of the incident, we

grant the petition and quash the order denying Mr. Garcia's motion. We leave it to the




                                              -7-
trial court to consider the motion under a proper construction of the Stand Your Ground

law.

             Petition granted.



KELLY and BADALAMENTI, JJ., Concur.




                                          -8-
