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MAX GARCIA vs STATE OF FLORIDA
Case Number: 2D18-4541
Judge: Edward LaRose
IN THE DISTRICT COURT OF APPEAL
On appeal from The e Circuit
Court for Sarasota County
Plaintiff's Attorney: Ashley Moody, Attorney General,
Tallahassee, and Katie Salemi-Ashby,
Assistant Attorney General
Lakeland, FL - Criminal Defense lawyer represented defendant with one count of aggravated battery causing great bodily harm, permanent disability, or permanent disfigurement chargeS.
Mr. Garcia was at a nightclub with his friends, Nicole Gruebmeyer, Halley
Vanselow, and Michael Maier. While at the club, Ms. Gruebmeyer met the victim,
Jordan Melchild. Mr. Melchild invited Ms. Gruebmeyer and Ms. Vanselow to his house.
Ms. Gruebmeyer asked if Mr. Garcia and Mr. Maier could come; Mr. Melchild agreed.
Mr. Melchild also invited his friend, Tyler Cooper, to stop by. Mr. Cooper met the group
later at Mr. Melchild's house.
At Mr. Melchild's house, the group was drinking outside. Another person,
Mark Lapp, arrived. Ms. Gruebmeyer, Ms. Vanselow, and Mr. Lapp went into the house
and locked themselves in a bathroom, apparently to use drugs. Mr. Melchild went into
the house to see what they were doing; Mr. Cooper followed him. Mr. Melchild became
angry and dragged Mr. Lapp out of the house.
Mr. Melchild went back inside. Mr. Garcia and Mr. Maier were also inside
the house. Mr. Melchild asked them to leave. Mr. Garcia stated that he was waiting for
Ms. Gruebmeyer because he was her ride. Mr. Melchild repeatedly asked Mr. Garcia to
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leave; he eventually grabbed Mr. Garcia to escort him out. Mr. Garcia resisted and tried
to restrain Mr. Melchild. Both men fell to the ground. Mr. Melchild was on top of Mr.
Garcia, who was on his back pressed into a corner between a wall and the bathroom
door. Mr. Melchild testified that he was not punching or kicking Mr. Garcia.
In contrast, Mr. Garcia testified that after he and Mr. Melchild fell to the
ground, Mr. Melchild started slamming his head into the ground. Mr. Cooper entered
the fray, punching Mr. Garcia in the face. Mr. Garcia lost his grip on Mr. Melchild and
Mr. Melchild started hitting him again. As Mr. Melchild and Mr. Cooper continued
punching him, Mr. Garcia saw Mr. Maier coming for Mr. Cooper. Mr. Garcia testified
that his head was getting slammed into the ground, he was bleeding, dizzy, and he had
two men punching him. At this point, Mr. Garcia grabbed Mr. Melchild's head and
pushed his thumb into Mr. Melchild's eye. He was scared and thought it necessary to
incapacitate Mr. Melchild because he had no chance of escape.
Mr. Garcia moved to dismiss the charge against him based on the
statutory immunity provided by sections 776.032 and 776.012. In his motion, Mr. Garcia
argued that Mr. Melchild was the initial aggressor. Mr. Garcia asserted that he was
justified in using force to prevent further injury to himself. After an evidentiary hearing,
the trial court denied the motion, ruling that: (1) Mr. Garcia was not entitled to immunity
because Mr. Melchild used lawful force to remove a trespasser; (2) there was no
evidence of any threat of imminent death or great bodily harm to Mr. Garcia, especially
where the initial force used by Mr. Melchild was lawful; and (3) Mr. Garcia was engaged
in criminal trespass and was not in a place where he had a right to be.
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Generally, a petition for writ of prohibition is the proper method for
reviewing the denial of a motion to dismiss under the Stand Your Ground law. See
Jefferson, 264 So. 3d at 1023 ("[P]rohibition is the appropriate remedy when the
appellate court determines on the merits that the defendant is entitled to immunity under
the Stand Your Ground law, the reason being that the lower court has no authority to
proceed against an immunized defendant."); Little v. State, 111 So. 3d 214, 216 n.1
(Fla. 2d DCA 2013). But, because the trial court erred in its construction of the Stand
Your Ground statute, we are unable to determine whether Mr. Garcia is entitled to
immunity on the merits. Thus, prohibition is not the appropriate vehicle under which to
proceed. We best proceed under our certiorari jurisdiction. Jefferson, 264 So. 3d at
Section 776.032(1) provides immunity to a person using force as
permitted in sections 776.012, 776.013, or 776.031. Section 776.012(1) authorizes the
use of nondeadly force when a defendant reasonably believes such force is necessary
to defend himself or herself against another's imminent use of unlawful force. There is
no duty to retreat before using nondeadly force under section 776.012(1). Under
section 776.012(2), a defendant 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 to prevent the imminent commission of a forcible felony. Under section
776.012(2), a person who uses deadly force does not have a duty to retreat and has the
right to stand his or her ground if he or she is not engaged in a criminal activity and is in
a place where he or she has a right to be.
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An objective standard applies in evaluating the facts presented in a Stand
Your Ground motion to dismiss. Mobley v. State, 132 So. 3d 1160, 1164 (Fla. 3d DCA
2014). The trial court must determine whether, based on the circumstances as they
appeared to the defendant, a reasonable and prudent person situated in the same
circumstances and knowing what the defendant knew would have used the same force
as did the defendant. Toledo v. State, 452 So. 2d 661, 662-663 (Fla. 3d DCA 1984).
The trial court found that any force used by Mr. Melchild was lawful to
remove Mr. Garcia, a trespasser. In the trial court's view, Mr. Garcia was not entitled to
immunity under section 776.012(1) because he was not defending against the imminent
use of unlawful force. As the State concedes, these findings are wrong as a matter of
The trial court cited to sections 776.031(1) and 776.013(1) when it found
that Mr. Melchild's initial use of force was lawful. Section 776.031(1) governs the use of
nondeadly force in defense of property; a person is justified in using nondeadly force
against another when that person reasonably believes such conduct is necessary to
terminate the other's trespass on either real property other than a dwelling or personal
property lawfully in his possession. § 776.031(1) (emphasis added); see also
§ 776.013(5)(a) (defining "dwelling"). Section 776.031(1) does not apply to a dwelling
and is inapplicable to Mr. Melchild's initial use of force.
Section 776.013 provides that a person who is in a dwelling or residence
is permitted to use nondeadly force against another if the person reasonably believes
such conduct is necessary to defend against the other's imminent use of unlawful force.
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See § 776.013(1)(a). No evidence suggested that Mr. Melchild's initial use of force was
necessary to defend against any imminent use of unlawful force by Mr. Garcia.
The trial court also concluded that section 776.012(2) only applies if the
person using deadly force is not engaged in a criminal activity and is in a place where
he has a right to be. According to the trial court, Mr. Garcia was not entitled to immunity
under section 776.012(2) because he was a trespasser at the moment leading to the
A defendant who is engaged in unlawful activity or who is in a place where
he does not have a right to be, has a duty to retreat and must use all reasonable means
in his power, consistent with his own safety, before his use of deadly force will be
justified under the Stand Your Ground law. See Jenkins v. State, 942 So. 2d 910, 914
(Fla. 2d DCA 2006) (explaining the duty to retreat means to "retreat to the wall" and
includes the use of all reasonable means, consistent with the defendant's own safety, to
avoid the danger and to avert the necessity of taking human life); Wyche v. State, 170
So. 3d 898, 905 (Fla. 3d DCA 2015) (holding if a person is engaged in unlawful conduct
or initially provoked the use of force against himself, that person has the duty to retreat
and/or withdraw from physical contact with the assailant before he may rely on the
defenses contained in chapter 776). A defendant is not foreclosed from defending
himself simply because he is in a place where he does not have the right to be, but he
must first attempt to retreat from the situation if he can do so safely. Thompson v.
State, 552 So. 2d 264, 266 (Fla. 2d DCA 1989) (holding if a person is in a place where
he does not have a right to be, he has a duty to retreat before using deadly force on the
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attacker, but deadly force is justifiable if retreat would be futile). The trial court's finding
failed to consider whether Mr. Garcia was able to retreat prior to his use of force.
Finally, the trial court failed to make any finding regarding whether Mr.
Garcia reasonably believed his use of force was necessary to prevent imminent death
or great bodily harm, or to prevent the commission of a forcible felony. To make that
determination, the trial court must consider the circumstances Mr. Garcia faced. See
Garrett v. State, 148 So. 3d 466, 468 (Fla. 1st DCA 2014). "[T]o justify the use of
deadly force, the appearance of danger must have been so real that a reasonably
cautious and prudent person under the same circumstances would have believed that
the danger could be avoided only through the use of that force." Id. Although the trial
court found no competent, substantial evidence of a threat of imminent death or great
bodily harm to Mr. Garcia, it did not consider whether, based on the circumstances as
they appeared to Mr. Garcia when he acted, a reasonably prudent person would have
used the same force. Nor did the trial court make any findings regarding whether Mr.
Garcia reasonably believed his use of force was necessary to defend against the
imminent commission of a forcible felony.
Outcome: Because the trial court erred in its legal conclusion that Mr. Melchild's
initial use of force was lawful, which prevented Mr. Garcia from asserting immunity
under section 776.012(1), and in its conclusion that section 776.012(2) applies only if the defendant was in a place where he had a right to be at the time of the incident, we grant the petition and quash the order denying Mr. Garcia's motion. We leave it to the trial court to consider the motion under a proper construction of the Stand Your Ground law.