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. F13-22181

                             Ryan Denard Lee,


                           The State of Florida,

     An Appeal from the Circuit Court for Miami-Dade County, Cristina
Miranda, Judge.

      Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant
Public Defender, for appellant.

      Ashley Moody, Attorney General, and Richard L. Polin, Assistant
Attorney General, for appellee.


     HENDON, J.
      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 asserted the defense of self-defense and testified at his trial,

where conflicting 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 possession 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

twenty-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 minimum mandatory.

      On appeal, Lee argues that the trial court erred by instructing the jury

using the amended 2014 instructions on the defense of justifiable use of

deadly force 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 correct

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 instructions 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 concluded that

Standard Jury Instruction (Criminal) 3.6(f) “accurately and correctly explains

this law to the jury with regard to the factually complex situations where the

jury must unwind the facts to determine who was the initial aggressor.” 

Id. at


–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 violates

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 second-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-

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 (Fla. 3d DCA 1995); Gantorius v. State, 

761 So. 2d 488

, 490 (Fla.

3d DCA 2000); see also Cleveland v. State, 

587 So. 2d 1145

, 1146 (Fla.

1991); Marmol v. State, 

750 So.2d 764

, 766 (Fla. 3d DCA 2000); Acosta v.


738 So. 2d 487

, 488 (Fla. 3d DCA 1999); Vidal v. State, 

704 So. 2d


 (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; reversed in part and remanded with directions.


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