Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT DUSHUN ROBINSON, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D20-3239 July 2, 2021 Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Sarasota County; Charles E. Roberts, Judge. Dushun Robinson, pro se. LUCAS, Judge. Dushun Robinson is presently serving a life sentence as a habitual felony offender following his conviction for manslaughter in 2014. Our court affirmed his direct appeal and issued a mandate on June 10, 2016. See Robinson v. State, 191 So. 3d 469 (Fla. 2d DCA 2016) (table decision). In March of 2018, Mr. Robinson filed a postconviction motion under Florida Rule of Criminal Procedure 3.850. His original motion included four grounds of alleged ineffective assistance of counsel. He later sought to amend his motion in July of 2018 to include additional information and assert three additional grounds of ineffective assistance of counsel. The postconviction court granted his motion to amend in part—the court permitted the amendment insofar as the new information pertained to the original motion's four asserted grounds; but it denied him leave to assert the three additional grounds as outside the two-year window. See Fla. R. Crim. P. 3.850(b) ("A motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final . . . ."); Flowers v. State, 278 So. 3d 899, 902 (Fla. 1st DCA 2019) ("[I]neffective assistance claims filed more than two years after the judgment and sentence become final are procedurally barred as untimely unless they fall within an exception to the two- year deadline."). The postconviction court then summarily denied 2 the motion as amended, and Mr. Robinson now appeals that summary denial. We find no merit in Mr. Robinson's arguments on appeal, save one. In the second ground of his rule 3.850 motion, Mr. Robinson contended that his defense counsel was ineffective for failing to object to the use of Florida Standard Jury Instruction (Criminal) 3.6(f) at his trial inasmuch as the use of that instruction effectively deprived him of his only defense (which, at trial, was premised upon the Stand Your Ground Statute, section 776.012, Florida Statutes (2013)). Although the failure to object to the use of a standard jury instruction, standing alone, may not constitute deficient performance, on this record it does not conclusively appear that counsel's agreement to the instruction's use, when coupled with a statement counsel made that suggests counsel misunderstood the state of the law concerning the interaction between a Stand Your Ground defense and the justifiable use of force defense set forth in 3.6(f), leads us to conclude that Mr. Robinson has raised a facially sufficient claim. See Bolduc v. State, 279 So. 3d 768, 771 (Fla. 2d DCA 2019) (reversing summary denial of postconviction motion and concluding that "[t]he instruction was plainly wrong, and in view of 3 our controlling decision in Little [v. State, 111 So. 3d 214 (Fla. 2d DCA 2013)], Mr. Bolduc has raised a facially sufficient claim that his trial counsel performed deficiently by failing to object"); see also Eady v. State, 229 So. 3d 434, 438 (Fla. 2d DCA 2017) ("By charging the jury that Eady had a duty to retreat were it to determine Eady was engaged in unlawful activity, the trial court impermissibly negated Eady's sole defense at trial—self-defense."); Andujar-Ruiz v. State, 205 So. 3d 803, 807 (Fla. 2d DCA 2016) ("[T]he instruction to the jury that Andujar-Ruiz had a duty to retreat constituted fundamental error because it effectively deprived him of his self-defense claim, his sole defense to the charges."); Rios v. State, 143 So. 3d 1167, 1170 (Fla. 4th DCA 2014) (holding that the trial court's instruction on duty to retreat was fundamental error because the "jury instruction, which was not necessary because Defendant did not have a duty to retreat under Florida's Stand Your Ground law, effectively eliminated Defendant's sole affirmative defense"). As in Bolduc, "there is, at least at the summary stage of this postconviction proceeding, a reasonable probability that the erroneous instruction made the difference between a verdict of 4 guilty and not guilty." 279 So. 3d at 772. Accordingly, we reverse and remand for the postconviction court to either prepare an order attaching portions of the record that would conclusively refute claim two of Mr. Robinson's motion or, in the alternative, convene an evidentiary hearing on that claim. See id. Affirmed in part; reversed in part; remanded. SLEET and STARGEL, JJ., Concur. Opinion subject to revision prior to official publication. 5