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

                          STATE OF FLORIDA,
                              Petitioner,

                                     v.

                       JAMES PATRICK WONDER,
                              Respondent.
                          ____________________

                             NO. 4D12-4510
                           ____________________

                       JAMES PATRICK WONDER,
                              Petitioner,

                                     v.

                          STATE OF FLORIDA,
                               Respondent.
                           ____________________

                             NO. 4D12-4559
                           ____________________

                             [August 13, 2014]

             On Motion for Rehearing, Rehearing En Banc
                        And for Certification

    Consolidated petitions for writ of certiorari and for writ of prohibition
to the Circuit Court for the Seventeenth Judicial Circuit, Broward County;
Bernard I. Bober, Judge; L.T. Case No. 08-15002 CF.

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

   Michael J. Entin and Frank A. Maister, Fort Lauderdale, for
respondent.
MAY, J.

   We deny the motion for rehearing, rehearing en banc, and certification.
We withdraw our previously issued opinion and substitute the following
opinion in its place.

   Having previously consolidated the two petitions filed in this case for
purposes of the record and disposition by the same panel, we now sua
sponte consolidate them for purposes of this opinion. The underlying
criminal case involves a tragic deadly shooting in a post office parking lot.

    In Case No. 4D12-4559, the defendant petitioned this court for a writ
of prohibition, challenging an order that denied his motion to dismiss the
criminal charges against him under sections 776.032 and 776.012,
Florida Statutes (2009), the “Stand Your Ground” law. In Case No. 4D12-
4510, the State petitioned this court for a writ of certiorari, challenging
part of the order determining that the criminal defendant was not involved
in “unlawful activity” at the time of the shooting. We deny both petitions.

    The manslaughter charge resulted from the tragic shooting death of the
victim. The victim and the defendant first encountered one another on
public streets where the defendant was slowly driving his car to the post
office. The victim was angered by the defendant’s driving.

   When the defendant turned right into the post office, the victim pulled
up next to him and each made an obscene gesture. The victim then drove
past the entrance to the post office, turned right at the next street and
right again into the post office parking lot. The victim drove his car at a
high rate of speed, nearly hitting the vehicle of another post office patron,
and parked it diagonally across two parking spaces. The victim exited his
vehicle, and angrily approached the defendant, yelling at him. Fearing for
his safety, the defendant shot and killed the victim.

   The State charged the defendant with manslaughter. The defendant
moved to dismiss the Information based on sections 776.012 and 776.032,
Florida Statutes, the “Stand Your Ground” law. The trial court held an
evidentiary hearing.1

   After hearing the testimony of witnesses and a medical expert, the court
concluded that the defendant’s use of force was not reasonable.

1The Supreme Court of Florida quashed our earlier decision upholding the denial
of the defendant’s request for an evidentiary hearing. Wonder v. State, 64 So. 3d
1208 (Fla. 2011).

                                       2
Specifically, the defendant “did not reasonably believe that the use of
deadly force was necessary to prevent death or great bodily harm to himself
or his family, and that immunity does not attach under Florida Statute
section 776.032.” The trial court denied the motion to dismiss.

   The State then requested the trial court to determine whether the
defendant’s possession of a firearm on post office property constituted
“unlawful activity” under section 776.013(3). Defense counsel argued that
such a determination was unnecessary because the motion to dismiss was
based on section 776.012, and not 776.013. Nevertheless, the court
determined that the defendant’s possession of a firearm on post office
property did not constitute “unlawful activity.”

   These rulings are the basis of the defendant’s petition for a writ of
prohibition and the State’s petition for a writ of certiorari.

    Prohibition lies to review a circuit court’s denial of a motion to dismiss
seeking statutory immunity under the “Stand your Ground” law. Joseph
v. State, 103 So. 3d 227 (Fla. 4th DCA 2012). We defer to the circuit court’s
factual findings when supported by competent, substantial evidence. Id.
at 229–30. We have de novo review of the legal issues. Id.

   The defendant elicited testimony about the difference in physical size
and strength of both him and the victim. The defendant was somewhat
fragile and in poor health. The victim was younger, taller, and in better
physical shape.

   The trial court found the testimony of the victim’s minor daughter, who
was a passenger in the victim’s car, credible. The daughter testified about
the facts leading up to the confrontation. The daughter’s testimony
mirrored the defendant’s version of events. She testified that her father
pulled into the post office, and told her he had to talk to a guy. She saw
her father exit the car, begin yelling at the defendant, and then heard the
shot. A medical expert testified that the victim’s wound was consistent
with his having turned his head and ducked as he was shot.

   Because competent, substantial evidence supports the trial court’s
factual findings and ultimate factual conclusion that the defendant did not
reasonably believe that deadly force was necessary, we deny the
defendant’s petition for writ of prohibition. See id.

    The State asks us to review that portion of the order in which the trial
court determined that the defendant’s possession of a firearm on post
office property did not constitute “unlawful activity” pursuant to section

                                      3
776.013(3), Florida Statutes (2009).2 The defendant has maintained all
along that such a determination was unnecessary because the defense
motion relied upon section 776.012 and not 776.013. The exception for a
defendant’s engagement in “unlawful activity” does not exist under section
776.012. We agree with the defendant. The trial court need not have
addressed this issue.

    Section 776.012, Fla. Stat. (2009), provides:

          Use of force in defense of person.—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; or

            (2) Under those circumstances permitted pursuant to s.
       776.013.

(emphasis added). There is no similar provision concerning involvement
in unlawful activity in section 776.012.3


2 We have held that possession of a firearm by a convicted felon constitutes
“unlawful activity” and precludes immunity under the “Stand Your Ground” law,
section 766.013(3). Bragdon v. State, 123 So. 3d 654 (Fla. 4th DCA 2013). We
certified conflict with Little v. State, 111 So. 3d 214 (Fla. 2d DCA 2013) (holding
trial court erred in denying immunity to defendant under section 776.012). The
Supreme Court of Florida has granted review. Bragdon v. State, No. SC13-2083
(Fla. July 2, 2014).
3 The legislature amended section 776.012(2) this year with an effective date of

June 20, 2014. See Ch. 2014-195, § 3, Laws of Fla. (to be codified at § 776.012,
Fla. Stat.). The statute now provides that a “person who uses or threatens to use
deadly force in accordance with this subsection does not have a duty to retreat
and has the right to stand his or her ground if the person using or threatening to
use the deadly force is not engaged in a criminal activity and is in a place where
he or she has a right to be.” § 776.012(2), Fla. Stat. (2014) (emphasis added);
see Hill v. State, No. 4D13-3672 (Fla. 4th DCA July 16, 2014) (recognizing the
recent amendments).

                                        4
   Section 776.013, Fla. Stat. (2009), however, provides:

      Home protection; use of deadly force; presumption of fear
      of death or great bodily harm.

          (1) A person is presumed to have held a reasonable fear of
      imminent peril of death or great bodily harm to himself or
      herself or another when using defensive force that is intended
      or likely to cause death or great bodily harm to another if:

            (a) The person against whom the defensive force was
         used was in the process of unlawfully and forcefully
         entering, or had unlawfully and forcibly entered, a
         dwelling, residence, or occupied vehicle, or if that person
         had removed or was attempting to remove another
         against that person’s will from the dwelling, residence, or
         occupied vehicle; and

            (b) The person who uses defensive force knew or had
         reason to believe that an unlawful and forcible entry or
         unlawful and forcible act was occurring or had occurred.

   Subsection (2) of the statute then sets out exceptions to the
presumption in subsection (1). These exceptions include when: (a) the
person against whom the force is used is a lawful resident or occupant of
the residence or vehicle; (b) the person sought to be removed is a child or
grandchild or someone otherwise in the lawful custody of the person
against whom defensive force is used; (c) “[t]he person who uses defensive
force is engaged in an unlawful activity or is using the dwelling, residence,
or occupied vehicle to further an unlawful activity . . .”; and (d) the person
against whom the force is used is a law enforcement officer.
§ 776.013(2)(a)–(d), Fla. Stat. (2009).

   Subsection (3) specifically 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.

§ 776.013(3), Fla. Stat. (2009).

                                      5
   At first glance, the title to each section of chapter 776 demarcates the
line between justifiable use of force in defense of self and others and the
presumption that applies under the castle doctrine. As the Second District
explained in Little v. State, 111 So. 3d 214, 219 (Fla. 2d DCA 2013),
sections 776.012, 776.013, and 776.032 provide alternative forms of
immunity.

          We do not agree that there is a conflict between the
      provisions in sections 776.012(1) and 776.013(3). Section
      776.013(3) provides for the justifiable use of deadly force by a
      law-abiding person outside of the “castle,” but it does not
      preclude persons who are engaged in an unlawful activity from
      using deadly force in self-defense when otherwise permitted.
      In fact, the Stand Your Ground law expressly amended section
      776.012 to provide that the use of deadly force is justified
      under the circumstances set forth in both sections 776.012(1)
      and 776.013.
                                 .   .    .
          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).

Id. at 221 (emphasis in original). We concur with the Second District’s
analysis.

   The defendant never sought immunity under section 776.013, and it
was unnecessary for the trial court to answer whether the defendant was
engaged in unlawful activity under section 776.013(3). For this reason,
we deny the State’s petition for writ of certiorari and remand the case to
the trial court for further proceedings consistent with this opinion.

DAMOORGIAN, C.J., and TAYLOR, J., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.

                                     6
