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,
Appellant,
vs.
The State of Florida,
Appellee.
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.
Before FERNANDEZ, C.J., and HENDON and GORDO, JJ.
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
2
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
1020–21. 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-
3
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, 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.
State, 738 So. 2d 487, 488 (Fla. 3d DCA 1999); Vidal v. State, 704 So. 2d
746 (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.
4