# Third District Court of Appeal State of Florida Opinion filed July 7, 2021

. Not final until disposition of timely filed motion for rehearing.

________________ No. 3D20

- 256 Lower Tribunal No. F 13

- 22181

________________

Ryan Denard Lee , 

### Appellant,

vs. The State of Florida , 

### Appellee.

An Appeal from the Circuit Court for Miami

- Dade County, Cristina Miranda , Judge. Carlos J. Martinez, Public Defender, and Susan S. Lerner , Assistan t Public Defender, for appellant. Ashley Moody , Attorney General, and Richard L. Polin , Assistant Attorney General, for appellee.

Before FERNANDEZ, C.J., and HENDON and GORDO , JJ. HENDON, J.2 Ryan Denard Lee appeals from a final judgment of conviction and sentence for second degree murder with a firearm. We affirm in part and reverse in part. Lee was charged with the second degree 2013 murder of Yves Sanon, a/k/a “Big.” Lee ass erted the defense of self

- defense and testified at his trial , where c onflicting evidence and testimony was presented regarding who was the initial aggressor. The jury found Lee guilty of second

- degree murder with a firearm, and guilty of unlawful possessio n of a weapon while engaged in a criminal offense. The trial court bifurcated the charge of possession of a firearm by a convicted felon and the jury returned a guilty verdict on that charge as well. Lee was sentenced to life with a minimum mandatory of
tw enty

- five years on the second

- degree murder with a firearm conviction, fifteen years on the unlawful possession of a firearm during a murder conviction, and fifteen years on the possession of a firearm by a convicted felon conviction with three years minim um mandatory. On appeal, Lee argues that t he trial court erred by instructing the jury using the amended 2014 instructions on the defense of justifiable use of deadly forc e pursuant to section 776.012 , Florida Statutes, rather than the version applicable in 2013 , when Lee committed the offense

. After reviewing the record, we conclude the jury instructions as given were a correct3 statement of the law. In State v. Floyd , 186 So. 3d 1013, 1022 (Fla. 2016) , the Florida Supreme Court quashed an appellate decision involving nearly the same disputed jury instruction issue , in which the appellate court had concluded that the jury instruction s negated the defendant’s sole defense of self

- defense . The Florida Supreme Court disagreed . After analyzing the interplay between the justifiable use of force statute and jury instructions relating to the pre

- 2014 version of the statute , the Court conclude d that Standard Jury Instruction (Criminal) 3.6(f) “ accurately and correctly explain s this law to the jury w ith regard to the factually complex situations where the jury must unwind the facts to determine who was the initial aggressor.” Id. at 1020

– 21. We affirm on this issue. We agree, however, with Lee’s argument that his conviction and
sentence for use of a firearm during the commission of a felony violate s double jeopardy

. Lee was convicted of second

- degree murder with a firearm and use of a firearm during the course of that same offense. Lee received a life sentence for the second

- degree murder charge, which was reclassified as a life felony for use of a firearm

. For the secon d

- degree felony of engaging in a felony while possessing a firearm during the same offense , Lee received a straight fifteen

- year sentence, to run concurrent with the life sentence

. Where the use of a weapon is the basis for enhancing the charge of second

-4 degree murder to a life felony, double jeopardy bars a separate conviction and sentence for misuse of the same firearm. Wimberly v. State , 649 So. 2d 338, 338 (Fla. 3d DCA 1995) ; Gantorius v. State , 761 So. 2d 488, 490 (Fla. 3d DCA 2000) ; see also Clevela nd v. State , 587 So. 2d 1145, 1146 (Fla. 1991); Marmol v. State , 750 So.2d 764, 766 (Fla. 3d DCA 2000); Acosta v. State , 738 So. 2d 487, 488 (Fla. 3d DCA 1999); Vidal v. State , 704 So. 2d 746 (Fla. 3d DCA 1998); Sales v. State , 653 So. 2d 456 (Fla. 3d DCA 1995). Accordingly, we reverse with directions that Lee’s conviction and sentence for possession of a firearm during the commission of a felony be vacated. We find Lee’s remaining argument regarding exclusion of the defense expert
on state

- of

- mind to be without merit. Affirmed in part ; r eversed in part and remanded with directions

.