Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT THOMAS PERUCHI, ) ) Appellant, ) ) v. ) Case No. 2D19-3535 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed May 7, 2021. Appeal from the Circuit Court for Pinellas County; Pat Siracusa, Judge. Howard L. Dimmig, II, Public Defender, and Deana K. Marshall, Special Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellee. STARGEL, J. Thomas Peruchi challenges his conviction for second-degree murder and his resulting life sentence. Based on fundamental error that occurred in the giving of the jury instruction related to the justifiable use of deadly force, we reverse his conviction and sentence and remand for a new trial.1 Peruchi, who had an ongoing dispute with a drug dealer to whom he owed money that he could not repay, arranged for a meeting with that dealer, ostensibly to buy drugs, and brought a knife to that meeting after his attempts to find a gun failed. During the encounter an argument ensued. Peruchi stabbed the dealer and then struck him with his car as both fled the scene. The dealer died and Peruchi was charged with first-degree murder, under both premediated and felony-murder theories. In addition to eyewitness testimony of the encounter, the State presented evidence to show that Peruchi made advance plans with the dealer to meet in order to purchase drugs, that he owed money to the dealer, and that he sought a weapon to take to that meeting. Under the State's theories, Peruchi either planned to kill the dealer or planned to rob the dealer of drugs or money and the dealer was killed in the process. Peruchi, however, maintained that he was not there to purchase drugs or to rob the dealer, that he was hoping to resolve an ongoing dispute over monies owed to the dealer, that the dealer had previously threatened him with a gun and appeared to be reaching for one during 1Peruchi raised numerous issues on appeal, ranging from errors related to his pretrial immunity hearing, the denial of his motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b), and other claims of jury instruction error including an incomplete manslaughter instruction without the required justifiable use of force language. We need not further address these issues because the fundamental error that occurred within the jury instructions on which our holding rests necessitates a full reversal of the judgment and sentence in this case irrespective of those issues. In light of our reversal on the jury instruction errors in this case, we decline to address them further except as relevant for remand purposes. See generally Welch v. State, 992 So. 2d 206, 210 n.4 (Fla. 2008) (noting that a court need not address every issue raised when the resolution of one issue results in a full reversal but also recognizing that a limited discussion of certain issues might be required for certain purposes). -2- the encounter, and that he acted in self-defense that day. The State did not charge Peruchi with robbery, carrying a concealed weapon, or any offense related to the purported attempt to purchase drugs. The State's presentation of evidence on the alleged commission of these uncharged offenses was relevant to either the charge of felony murder, the lesser included offenses, or the claimed affirmative defense of justifiable use of deadly force. Prior to trial, Peruchi filed a motion for pretrial immunity under section 776.032, Florida Statutes (2017), Florida's Stand Your Ground statute, and section 776.012(2), Florida Statutes (2017)—which was denied. Ultimately, the jury did not find that the State had proven either of its theories of first-degree murder and instead found that Peruchi had committed the lesser included offense of second-degree murder. Similar to his pretrial claims of immunity, Peruchi's primary defense at trial was self-defense on the theory of justifiable use of deadly force to protect against imminent bodily harm based on the acrimony with the victim and his belief that the victim was reaching for a gun during their altercation. See § 776.012(2). The State asserted that Peruchi was not entitled to claim this defense because he was committing a crime—either the prearranged purchase of drugs or the carrying of a concealed weapon—at the time that the altercation between the two men began, thereby necessitating a duty to retreat before using deadly force in self-defense. Jury instructions were given for the charged offense, the lesser included offenses of second- degree murder (for which he was convicted) and manslaughter, and his affirmative defense of justifiable use of deadly force. These instructions contained several errors, but Peruchi's counsel did not object to all of them. We address only two instruction- -3- related errors raised on appeal that require a fundamental error analysis. See State v. Delva, 575 So. 2d 643, 644 (Fla. 1991) ("Instructions, however, are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred."). The standard jury instructions for a homicide and for lesser included offenses were given in this case. The latter provides a definition for justifiable use of deadly force, which was at issue within Peruchi's defense. See Fla. Std. Jury Instr. (Crim.) 3.6(f). The jury was also given the instructions related to a drug sale or possession and carrying a concealed weapon—offenses for which he was not charged—for the sole purpose of allowing the State to rebut Peruchi's claim of entitlement to use deadly force. The State asked the jury to consider whether Peruchi was committing any of those crimes at the time of the stabbing through the instructions given on the drug and weapon crimes in relation to the affirmative defense of justifiable use of deadly force. If yes, then he had a duty to retreat before using deadly force. See § 776.012(2). An exception to the justifiable use of deadly force, apart from the duty to retreat if possible during the commission of a crime, is the forcible felony exception. § 776.041 ("The justification described in the preceding sections of this chapter is not available to a person who: (1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony . . . ."). Among other things, Peruchi specifically argues that there was an error given on the instruction for justifiable use of force related to the -4- forcible felony exception portion and the uncharged drug and weapon crimes.2 The relevant portion of the instruction given was as follows: Based on appearances, Thomas Peruchi must have actually believed that the danger was real. However, the defendant had no duty to retreat if he was not otherwise engaged in criminal activity and was in a place where he had the right to be. However, the use of deadly force is not justified if you find that Thomas Peruchi was attempting to commit, committing, or escaping after the commission of a robbery, purchase or attempted purchase of cocaine, or unlicensed carrying of a concealed weapon. Peruchi correctly argues that the second paragraph erroneously included possession of cocaine and carrying a concealed weapon, see § 776.08, in its listing of forcible felonies that, if committed, would not have entitled Peruchi to assert justifiable use of deadly force at all and that therefore could have misled the jury into believing it could not find that he was justified in his use of force regardless of whether he was able to retreat before defending himself if it believed he either possessed drugs or was carrying a concealed weapon at the time of the altercation. See Montgomery v. State, 291 So. 3d 170, 179 (Fla. 2d DCA 2020) ("Thus, to instruct the jury on the forcible- felony exception in this circumstance amounted to informing the jury that although it might conclude that Martinez acted in self-defense . . ., the use of deadly force was not justifiable if the jury found that Martinez committed . . . aggravated battery. This circular 2The giving of the forcible felony exception instruction in regard to the uncharged robbery as related to the felony murder theory was not a fundamental error in this case because Peruchi "raised self-defense at trial" and the court was "required to read an instruction on the forcible-felony exception." See Cook v. State, 192 So. 3d 681, 683 (Fla. 2d DCA 2016) ("[E]ven if the predicate felony is not formally charged, to prevail on a felony-murder theory the State must present evidence sufficient to demonstrate that the defendant committed the homicide while engaged in the commission of the predicate felony."). -5- logic would most probably confuse jurors because the apparent result is that the instruction precludes a finding of self-defense and amounts to a directed verdict on the affirmative defense." (alteration in original) (quoting Martinez v. State, 981 So. 2d 449, 453 (Fla. 2008))). "Where a challenged jury instruction involves an affirmative defense, as opposed to an element of the crime, fundamental error only occurs when a jury instruction is so flawed as to deprive the defendant of a fair trial." Crimins v. State, 113 So. 3d 945, 948 (Fla. 5th DCA 2013). The instruction that was given was erroneous and indicated to the jury that if the jury found he was committing either the drug or the weapon offense, then Peruchi's primary defense was not available to him at all rather than with qualification. See Redding v. State, 41 So. 3d 353, 355 (Fla. 2d DCA 2010) ("Because the reading of the forcible-felony exception in the absence of an independent forcible felony negates a defendant's claim of self-defense, it is not a reasonable trial tactic or strategy to fail to object to the erroneous reading of the instruction."). In reality, the State offered those two offenses only as crimes he was committing at the time of the altercation in order to show that he had a duty to retreat if possible before using force to defend himself—something the jury was properly instructed on in the preceding paragraphs and that was unrelated to the forcible felony exception. Therefore, Peruchi is correct that those uncharged offenses should not have been included in the list of felonies in the forcible felony instruction that precluded the use of the defense at all. Where self-defense is "the defendant's primary defense and the evidence [cannot] be viewed as 'extremely weak,' " then the error is fundamental. Crimins, 113 So. 3d at 948; see also Zuniga v. State, 869 So. 2d 1239, 1240 (Fla. 2d DCA 2004) -6- ("The only disputed issue at trial was whether Zuniga acted in self-defense. . . . The self-defense instruction can be likened to an element of the offense for its importance to the defendant. Therefore, . . . because the erroneous instruction was relevant to the disputed issue at trial, we conclude that the error was fundamental." (citation omitted)). Self-defense was certainly the primary defense in this case, especially in regard to the lesser included offenses, and a properly instructed jury would have been faced with considering whether Peruchi had a duty to attempt retreat before using force to defend himself under these circumstances rather than whether he was precluded from asserting the defense at all if he was either carrying a concealed weapon or attempting to purchase drugs. See Martinez, 981 So. 2d at 456. This jury instruction error deprived Peruchi of the proper consideration of an issue critical to his defense. The jury instructions on justifiable use of deadly force in this case contained fundamental error. The instructions identified two crimes that did not qualify for the forcible felony exception. Accordingly, we reverse the conviction and sentence in this case and remand for a new trial or other proceedings consistent with this opinion. We note that the jury found Peruchi not guilty of the charge on which he sought pretrial immunity but convicted him of a lesser included offense to which the same self-defense arguments applied. Although we need not reach the issues raised by Peruchi related to his pretrial immunity hearing because of our reversal on the deficient jury instructions, Peruchi may again opt to seek immunity by pretrial motion. Cf. Boston v. State, 296 So. 3d 580, 582–84 (Fla. 1st DCA) (stating that "a criminal defendant is not entitled to another immunity hearing when he goes to trial and his self-defense immunity claim is fully litigated" because the State met "the heavier trial burden of proof beyond a -7- reasonable doubt" if "the trial court properly instructed the jury on [the defendant's] self- defense claim" (emphasis added)), review granted, SC20-1164, 2020 WL 5946341 (Fla. Oct. 7, 2020). Reversed and remanded. NORTHCUTT and MORRIS, JJ., Concur. -8-