JAMES WYATT MCGRIFF,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

CASE NO. 1D13-6204

_____________________________/

Opinion filed April 8, 2015.

An appeal from the Circuit Court for Gadsden County.

Jonathan E. Sjostrom, Judge.

Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public 

Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Justin D. Chapman, Assistant Attorney 

General, Tallahassee, for Appellee.

ON MOTION FOR REHEARING

PER CURIAM.

We grant Appellee’s motion for rehearing in part and substitute this opinion 

in place of our original opinion.

Appellant shot and killed a man during an argument over a backyard dice 
game in 2011. He was convicted of three felonies1 and sentenced to concurrent 

prison terms, the longest of which is 30 years. He raises four issues in this direct 

appeal, and we find merit in two.

First, we agree with Appellant that the trial court abused its discretion when 

it instructed the jury that “if [Appellant] was engaged in an unlawful activity, [his] 

use of deadly force was not justified if he could have reasonably and safely 

avoided the use of deadly force by retreating.” This was an incorrect statement of 

then-existing law. Section 776.012(1), Florida Statutes (2010) – the sole statute on 

which Appellant’s self-defense claim was based – provided that “a person is 

justified in the use of deadly force and does not have a duty to retreat if [h]e . . . 

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” (emphasis added), and this court held in Garrett v. State, 148 So. 3d 466, 

471 (Fla. 1st DCA 2014), that “[t]he fact that [the defendant] was a convicted felon 

in unlawful possession of a firearm did not apply to the jury’s consideration of 

whether [he] had a duty to retreat under section 776.012(1).” Accord Dorsey v. 

State, 149 So. 3d 144, 147 (Fla. 4th DCA 2014) (Dorsey II); Rios v. State, 143 So. 

3d 1167, 1169-70 (Fla. 4th DCA 2014); Hardison v. State, 138 So. 3d 1130, 1134 

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 Manslaughter (count I), possession of a firearm by a convicted felon (count II), 

and carrying a concealed firearm (count III).

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(Fla. 1st DCA 2014);2 see also Hill v. State, 143 So. 3d 981, 984 (Fla. 4th DCA 

2014) (en banc) (holding that the defense provided in section 776.012(1) is 

available to persons engaged in an unlawful activity and explaining that “[t]he 

addition of the words ‘and does not have a duty to retreat’ to section 776.012 had 

the effect of abrogating the common law duty to retreat before using deadly force 

outside the home under the circumstances indicated therein”); Little v. State, 111 

So. 3d 214, 219-22 (Fla. 2d DCA 2013) (holding that a defendant engaged in an 

unlawful activity when he or she uses force cannot obtain immunity from 

prosecution based on section 776.013(3), but he or she can obtain immunity based 

on section 776.012(1)). This error was preserved below and was not harmless 

because the erroneous instruction effectively eliminated Appellant’s sole defense

and was emphasized several times by the prosecutor during closing argument.

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2

 We recognize that the trial court did not have the benefit of Garrett or the other 

cited decisions at the time of trial, and we also recognize that the Dorsey opinion 

relied on by the trial court to craft the jury instructions did hold that the common 

law duty to retreat continues to apply to a defendant who is engaged in an unlawful 

activity at the time he is attacked. Dorsey v. State, 74 So. 3d 521 (Fla. 4th DCA 

2011) (Dorsey I); accord Morgan v. State, 127 So. 3d 708, 715-17 (Fla. 5th DCA 

2013); Darling v. State, 81 So. 3d 575, 578-79 (Fla. 3d DCA 2012). However, the 

focus of Dorsey I was on the defense provided by section 776.013(3), not section 

776.012(1). The same is true of Morgan and Darling. Moreover, in a subsequent 

opinion in the Dorsey case, the Fourth District held that it was fundamental error to 

instruct the jury that a defendant engaged in an unlawful activity had a duty to 

retreat when the defendant’s self-defense claim was based on section 776.012(1). 

See Dorsey II, 149 So. 3d at 147.

3

 During his initial closing argument, the prosecutor emphasized Appellant’s duty 

to retreat and argued that the evidence showed that Appellant could have gotten 

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Second, we agree with Appellant that the trial court abused its discretion 

when it “re-joined”4 count II (possession of a firearm by a convicted felon) with 

the other charges for purposes of trial. The trial court’s decision to re-join count II 

was based on its determination that Appellant’s status as a convicted felon in 

possession of a firearm was relevant to Appellant’s claim of self-defense because 

his duty to retreat or not turned on whether he was engaged in an unlawful activity. 

However, as the cases cited above now make clear, it was irrelevant whether 

Appellant was engaged in an unlawful activity when he used the force at issue

because his self-defense claim was based upon section 776.012(1), not section 

776.013(3). Accordingly, the trial court should have severed count II from the 

remaining charges for purposes of trial. See State v. Vazquez, 419 So. 2d 1088, 

1090 (Fla. 1982); Shuler v. State, 929 So. 2d 645 (Fla. 1st DCA 2006); Monson v. 

State, 627 So. 2d 1301, 1302 (Fla. 1st DCA 1993).

For these reasons, we reverse Appellant’s judgment and sentence on counts I 

(manslaughter) and III (carrying a concealed firearm) and remand for a new trial

away from the victim by running along the fence the victim pushed him into. 

Defense counsel responded in his closing argument that Appellant could not have 

run away because he was backed against the fence and the victim was in his escape 

route. In rebuttal closing argument, the prosecutor again emphasized Appellant’s 

duty to retreat, arguing that “[t]he jury instructions say it is his duty, as a convicted 

felon with a firearm, to at least try . . . to run along that fence where he can and is 

able.”

4

 The trial court initially granted Appellant’s motion to sever count II from the 

other charges for purposes of trial, but the court subsequently “re-joined” count II 

with the other charges over Appellant’s objection.

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on those counts consistent with this opinion. We affirm Appellant’s judgment and 

sentence on count II (possession of a firearm by a convicted felon). See Vazquez, 

419 So. 2d at 1091 (“While the proof of Vazquez’ prior conviction unfairly 

prejudiced his defense to the [murder and unlawful display of a firearm] counts, 

that proof was both relevant and admissible and not unfairly prejudicial in the 

firearm possession count.”).

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

BENTON, WETHERELL, and SWANSON, JJ., CONCUR.

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