Ford v. State

172 So. 3d 1003, 2015 Fla. App. LEXIS 13186, 2015 WL 5164901

Opinions

RAY, J.

On the authority of McGriff v. State, 160 So.3d 167, 168-69 (Fla. 1st DCA 2015), and Garrett v. State, 148 So.3d 466, 471 (Fla. 1st DCA 2014), review granted, No. SC14-2110, 2015 WL 2171635 (Fla. May 6, 2015), we reverse Appellant’s judgment and sentence for second-degree murder and remand for a new trial. The trial court committed reversible error when it failed to instruct the jury on Appellant’s theory of self-defense based on section 776.012(1), Florida Statutes (2012), notwithstanding the fact that he was a convicted felon in unlawful possession of a firearm at the time of the deadly shooting. The trial court’s instruction referencing a “duty to retreat” if Appellant was engaged in unlawful activity was an incorrect statement of then-existing law concerning Appellant’s defense. This error was preserved and cannot be deemed harmless under the facts of this case. Appellant’s judgment and sentences on the remaining counts, are affirmed without comment.

AFFIRMED in part; REVERSED and REMANDED for a new trial in part.

LEWIS, J., concurs with'opinion. KELSEY, J., concurs in part and dissents in part with opinion.