FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit
Court for Pinellas County; Nancy Moate Ley, Judge.
Bolduc, pro se.
Bolduc appeals from a final order summarily denying his
motion for postconviction relief under Florida Rule of
Criminal Procedure 3.850. Although his motion alleged seven
claims, we write to address only one. Claim six-a claim of
ineffective assistance of counsel based on a failure to
object to a legally inaccurate self-defense instruction-is
facially sufficient and not conclusively refuted by the
record attached to the postconviction court's order. We
reverse the summary denial of that claim and affirm the
remainder of the order without further comment.
found Mr. Bolduc guilty of two counts of attempted
second-degree murder based on an incident that occurred in a
hotel room in Clearwater in which Mr. Bolduc stabbed Arianne
Johnson and Larry Burchette. Mr. Bolduc and the two victims
were staying at the hotel after having traveled together from
Tennessee to Florida. According to Mr. Bolduc, "drugs
and alcohol were prevalent" during the trip.
their second night in Florida, there was a confrontation over
money. Mr. Bolduc ended up stabbing Ms. Johnson and Mr.
Burchette with a knife. The parties involved disagreed about
who was the aggressor. The victims' story-and the
State's theory at trial-was that Mr. Bolduc attacked Mr.
Burchette, Ms. Johnson tried to intervene, and Mr. Bolduc
stabbed both in the ensuing scuffle. Mr. Bolduc defended on
the theory that he stabbed Mr. Burchette and Ms. Johnson in
self-defense after he was attacked, unprovoked, during an
argument about some missing money.
court affirmed Mr. Bolduc's judgment and sentences on
direct appeal. See Bolduc v. State, 205 So.3d 597
(Fla. 2d DCA 2016) (table decision). Mr. Bolduc subsequently
filed a rule 3.850 motion in which he raised four claims of
ineffective assistance of counsel and one
Brady claim. He later amended that motion,
adding additional claims of ineffective assistance of counsel
and cumulative error. The postconviction court then rendered
the order leading to this appeal.
review a postconviction court's summary denial of a claim
raised in a rule 3.850 motion de novo. Martin v.
State, 205 So.3d 811, 812 (Fla. 2d DCA 2016). In
conducting that review, we accept the factual allegations of
the defendant's motion as true unless they are
conclusively refuted by the record, the relevant portions of
which must be attached to the postconviction court's
order. See Fla. R. Crim. P. 3.850(f)(5); Peede
v. State, 748 So.2d 253, 257 (Fla. 1999). Thus, we will
affirm the postconviction court's summary denial of a
postconviction claim only if the claim is facially
insufficient or conclusively refuted by the record. See
Watson v. State, 34 So.3d 806, 808 (Fla. 2d DCA 2010)
(citing Griggs v. State, 995 So.2d 994, 995 (Fla.
1st DCA 2008)).
claim six of his motion for postconviction relief, Mr. Bolduc
alleged that his trial counsel was ineffective for failing to
object to an erroneous jury instruction on the issue of
self-defense. A claim of ineffective assistance of counsel
requires a defendant to establish that his counsel's
performance was deficient and that he was prejudiced as a
result. See Bell v. State, 965 So.2d 48, 56 (Fla.
2007) (citing Strickland v. Washington, 466 U.S. 668
(1984)). "An attorney's performance is deficient
when it falls below an objective standard of reasonableness
under prevailing professional norms." Id. And
prejudice exists when the defendant shows "a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different." Strickland, 466 U.S. at 694.
Bolduc's self-defense theory was based on section
776.012(1), Florida Statutes (2011), governing use of force
in defense of the person, which provides that a person is
justified in using deadly force and has no duty to retreat if
he reasonably believed such force was necessary to prevent
imminent death or great bodily harm or the imminent
commission of a forcible felony. Prior to 2014, the statute
did not require that the person using deadly force not have
been engaged in unlawful activity when such force was used.
See § 776.012, Fla. Stat. (2014). Put
differently, as far as the text of section 776.012(1) as it
existed was concerned, a person could be engaged in unlawful
activity but still legally claim that his or her use of
deadly force was justified so long as the use of such force
was reasonably believed to have been necessary to prevent
imminent death or great bodily harm or the imminent
commission of a forcible felony.
section 776.012(1) did not, in 2011, require that the
defendant not be engaged in unlawful activity, section
776.013(3), a subsection governing the use of force outside
the home, did contain such a requirement. This created some
confusion over whether section 776.013(3) expressed or
implied a requirement that a defendant claiming self-defense
under section 776.012(1) not have been engaged in unlawful
activity at the time of the use of deadly force. See,
e.g., Dorsey v. State, 149 So.3d 144, 146-47
(Fla. 4th DCA 2014); Rios v. State, 143 So.3d 1167,
1170-71 (Fla. 4th DCA 2014). Our court resolved that question
in 2013 in Little v. State, 111 So.3d 214, 218-22
(Fla. 2d DCA 2013), in which we held conclusively that it did
20, 2014, the last day of Mr. Bolduc's trial, an amended
version of section 776.012 went into effect. This new version
of the statute restricted the availability of the defense of
justifiable use of deadly force to when the defendant is
"not engaged in a criminal activity" and is
"in a place where he or she ha[d] a right to be."
§ 776.012(2), Fla. Stat. (2014). The amended statute did
not apply to Mr. Bolduc's offenses, however, because it
represented a substantive change in the law. See Dooley
v. State, 268 So.3d 880, 888 n.6 (Fla. 2d DCA 2019)
(citing Dorsey, 149 So.3d at 146 n.2; Rios,
143 So.3d at 1170 n.3); see also Collins v.
Youngblood, 497 U.S. 37, 49 (1990) ("A law that
abolishes an affirmative defense of justification . . .
expands the scope of a criminal prohibition after the act is
done."). Although Mr. Bolduc was entitled to the
justifiable use of deadly force defense as defined by the
pre-2014 iteration of the statute, which contains no such
requirement, the trial court instructed the jury that the
defense was available "if [he] was not engaged in
illegal activity." Mr. Bolduc's trial counsel had
the opportunity to object to this instruction but did not.
postconviction court held that Mr. Bolduc's trial counsel
"had a legal basis to object to the portion of the
instruction indicating that the defendant did not have a duty
to retreat." Indeed, our decision in Little
that a defendant claiming self-defense under section
776.012(1) was not subject to a requirement that he or she
not have been engaged in unlawful activity had been on the
books for over a year when Mr. Bolduc's case was
submitted to the jury. The instruction was plainly wrong, and in
view of our controlling decision in Little, Mr.
Bolduc has raised a facially sufficient claim that his trial
counsel performed deficiently by failing to
object.See Adams v. State, 727 So.2d
997, 999 (Fla. 2d DCA 1999) ("We conclude that ignorance
of the law on an issue that was pertinent to the overall
presentation of Adams' defense meets the first prong of
Strickland."); cf. Andujar-Ruiz v.
State, 205 So.3d 803, 806 (Fla. 2d DCA ...