MICHAEL TRAMEL,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D13-2285

_____________________________/

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).

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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).

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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 

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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-deadlyforce 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 

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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).

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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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