Giardina v. State

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
MICHAEL C. GIARDINA, )
)
Appellant, )
)
v. ) Case No. 2D14-1206
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed February 20, 2015.
Appeal pursuant to the Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Pasco County; William R. Webb, Judge.
Michael C. Giardina, pro se.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Dawn A. Tiffin,
Assistant Attorney General, Tampa, for
Appellee.
PER CURIAM.
Michael C. Giardina appeals the denial of his petition for habeas corpus.
This court ordered briefing from the State and has fully reviewed the record. At trial, the
jury received a modified instruction on justifiable use of deadly force. On direct appeal,
Mr. Giardina unsuccessfully argued that the trial court committed fundamental error by
omitting a portion of the instruction explaining that deadly force can be permissible
when defending against the imminent commission of a forcible felony by an aggressor.
See Giardina v. State, 986 So. 2d 608 (Fla. 2d DCA 2008) (table decision). In this
petition for habeas corpus, which was filed in 2013, he argues that the trial court
committed fundamental error resulting in a manifest injustice when it instructed the jury
with standard language that he had no duty to retreat if he was not engaged "in an
unlawful activity." Although we agree with Mr. Giardina that this issue was not resolved
in prior proceedings, we do not agree that this instruction on the duty to retreat was
erroneous, much less that it resulted in the type of manifest injustice that caused the
Fourth District to give relief in Furney v. State, 115 So. 3d 1095 (Fla. 4th DCA 2013),
which addressed the "forcible felony" jury instruction discussed in Martinez v. State, 981
So. 2d 449 (Fla. 2008).
Affirmed.
ALTENBERND, BLACK, and SLEET, JJ., Concur.
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