Major FL Court Upholds Conviction Despite Prosecutor Misstatement About Stand Your Ground Law

April 10, 2026 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

Florida’s 4th District Court of Appeal ruled that even though the prosecutor mischaracterized how Florida’s Stand Your Ground law applied in the defendant’s case, affirmance was required, as the trial judge’s failure to sustain the defense’s objection to the prosecutor’s comment was “harmless error.”

CASE: Darby v. State, — So.3d — (Fla. 4th DCA 2026)

Charge(s): Attempted Manslaughter by Act

Outcome: Conviction AFFIRMED, as the prosecutor’s misstatement of the law was “harmless error.”

Florida’s Stand Your Ground Law

In Florida, Stand Your Ground (Fla. Stat. 776.012, 776.013, 776.031, 776.032, 776.041) serves as a total defense if someone is arrested and charged with an allegedly unlawful use or threatened use of deadly or nondeadly force.

Stand Your Ground functions as a total defense if someone uses or threatens to use deadly force in response to what they reasonably believed was an imminent threat of death or serious bodily harm to themselves or others. Little v. State, 111 So. 3d 214 (Fla. 2d. DCA 2013). It also permits the use/threatened use of deadly force to prevent the imminent commission of a forcible felony.

Stand Your Ground also serves as a total defense if a person uses or threatens nondeadly force, if they reasonably believed it was necessary to prevent the imminent use of deadly or nondeadly force against themselves or their property. Claudio-Martinez v. State, 324 So.3d 45 (Fla. 2d DCA 2021) 

Defendants in Florida frequently rely upon Stand Your Ground to fight against various criminal charges. These may include, but are not limited to:

• Murder and attempted murder
• Kidnapping 
• Battery and aggravated battery
• Felony battery
• Manslaughter
• Assault and aggravated assault

Before we dive into Darby v. State, — So.3d — (Fla. 4th DCA 2026), it is important to note a few more things about the Stand Your Ground law:

• The law does not apply if the defendant was actively engaged in criminal activity at the time the force was used or threatened – with the (possible) exception of a felon using an illegally-possessed firearm to permissibly defend themselves/others/to prevent a forcible felony (Little v. State, 111 So. 3d 214 (Fla. 2d. DCA 2013))
• The law does not apply to an aggressor, provoker or initiator (e.g. someone starting the fight) UNLESS they announce to the victim that they are no longer using/threatening to use violence AND have attempted to retreat (and reasonably believe there is an imminent risk of death/serious bodily injury that they cannot retreat from any further)
• Stand Your Ground ABOLISHED the duty to retreat, if someone is in a place they have the lawful right to be, was not engaged in criminal activity at the time of the alleged offense, and were not the initiator, aggressor, or provoker. Mobley v. State, 132 So. 3d 1160 (Fla. 3d DCA 2014)

If someone believes they “stood their ground,” an experienced and aggressive Florida criminal defense attorney may file a pretrial motion to dismiss (pursuant to the Stand Your Ground law) on that person’s behalf. This triggers the requirement for a pretrial immunity hearing. Bouie v. State, 292 So.3d 471 (Fla. 2d DCA 2020)

Note: Unlike a Fla. R. Crim. P. 3.190(c)(4) motion to dismiss, the factual allegations in a Stand Your Ground motion to dismiss do not have to be sworn to. For more, click here.

A pretrial immunity hearing is a preliminary proceeding (often referred to as a “mini-trial”) that is presided over by the trial judge – the goal of which is to determine if the defendant is entitled to legal immunity from the charges they face pursuant to Stand Your Ground. Martin v. State, 414 So.3d 195 (Fla. 4th DCA 2025). To learn more about pretrial immunity hearings, click here. 

At that pretrial immunity hearing, a defendant must present (either through the factual allegations in the pretrial motion to dismiss or at the hearing itself) a prima facie case of entitlement to Stand Your Ground immunity. 

Important: A prima facie case does not require the defendant to present any evidence. It only requires the defendant to allege a specific set of facts that, if the State fails to refute by clear and convincing evidence, would make the use or threatened use of force justified under the Stand Your Ground law. Jefferson v. State, 264 So.3d 1019 (Fla. 2d DCA 2018)

Once a defendant makes a prima facie showing of entitlement to immunity, the burden shifts to the State to prove by clear and convincing evidence that the defendant DID NOT use or threaten force in a manner that complies with the Stand Your Ground law. If the State fails, the charges must be dismissed. Paese v. State, 381 So.3d 4 (Fla. 4th DCA 2024) 

Sometimes, a trial judge will DENY a Stand Your Ground pretrial motion to dismiss – and this decision (if it is appealed by the defendant) will be affirmed by the District Court of Appeal that has jurisdiction over the trial court. For more about Stand Your Ground appeals, click here.

If that occurs, the defendant can again argue AT TRIAL that their use or threatened use of force was legally justified under Florida law. There, the State must prove beyond a reasonable doubt that the defendant did not permissibly use or threaten deadly or nondeadly force.

In one recent case heard by Florida’s 4th District Court of Appeal (Southeast FL’s highest court), a prosecutor said during closing arguments that despite evidence in the record that the defendant acted in self-defense, he had a DUTY TO RETEAT before he fired shots towards a group of men outside a bar.

The defense objected to the prosecutor’s comment, arguing this was a misstatement of the law and the jury should be instructed to disregard it (e.g. not consider it in their deliberations). But the trial judge OVERRULED the objection – and the defendant was ultimately convicted (of a lesser-included offense of the original charge).

On appeal to the 4th DCA, the defendant requested a new trial. He argued that because the judge failed to sustain the prosecutor’s objection, the jury may have been influenced by the idea that he had a duty to retreat (which he did not under the Stand Your Ground law, given he was in a place he had a lawful right to be and was not engaged in criminal activity before the force was used).

Though the 4th DCA agreed with the defendant that the judge erred in overruling the objection, it nevertheless AFFIRMED the defendant’s conviction – finding the prosecutor’s misstatement of the Stand Your Ground law was “cured” by the jury instructions ultimately given by the judge (which correctly stated the law).

Let’s take a look at that case – Darby v. State, — So.3d — (Fla. 4th DCA 2026) – and discuss what it means for defendants in Florida who argue Stand Your Ground at trial.

KEY CASE: Darby v. State, — So.3d — (Fla. 4th DCA 2026)

In Darby, the defendant (Darby) was arrested and charged with attempted first-degree murder after a fight outside in the restaurant – during which he allegedly shot at a group of men. He was CONVICTED of the lesser-included offense of Attempted Manslaughter by Act, and appealed. At trial, it was revealed that:

• Darby spit in the victim’s face during an argument – which caused the victim to head-butt Darby
• Darby ran away, but then reengaged with the victim by holding the door to the bathroom closed when the victim used it and attempted to exit it a few minutes later
• When the victim eventually got the door open, he followed Darby into the alley behind the restaurant
• A confrontation ensued – during which, according to Darby’s testimony, the victim and two of the victim’s friends pursued Darby
• Darby fell on the ground and was kicked, then managed to get up and flee
• Darby ran to his scooter a short distance away and found that his key, wallet, and phone were missing – however, his firearm was still there (according to Darby)
• Darby’s pursuers went back into the restaurant as he was fleeing, but after Darby got his firearm, came back out and started towards him again
• Darby fired a series of shots in the direction of the group
• The victim was struck by two rounds in the leg

At trial, Darby argued that his use of deadly force was justifiable under the Stand Your Ground law, as he had a reasonable fear of imminent death or serious bodily injury. 

Darby noted that he had no duty to retreat, as he was not engaged in criminal activity and in a place he had a lawful right to be at the time he discharged his weapon. However, during closing argument, the prosecutor in Darby’s case made the following comment:

“[Y]ou’ll be given … the justifiable use of deadly force instruction, which is what the [d]efense claims happened in this case …. [The defendant] was permitted to [s]tand [his] [g]round. He did not have a duty to retreat. And you will be provided … this instruction, which says, the [d]efendant was justified in using deadly force if he … reasonably believed that such force was necessary to prevent imminent death or great bodily harm to himself or another. ….”

“But the question is imminency. Was there an imminent threat to [the defendant] that required the use of deadly force? The answer is no, because [the defendant] put himself back in that alley. And remember how far apart [the defendant] even was from [the victim]. [The defendant] tells you … that he walked into that alley … with the firearm. … The alley that he could have turned around and left. So when we hear about the duty to retreat, the [d]efendant had no duty to retreat, it’s not in this situation. It’s not after you put yourself in the situation and said, oh, well—well, now I think [the victim is] coming for me. I don’t have to go anywhere. I can start shooting.”

Darby (through his attorney) objected, urging the trial judge to instruct the jury to disregard the prosecutor’s comment because it may wrongly cause the jury to believe Darby had a legal duty to retreat (causing them to automatically convict him). However, the trial judge OVERRULED the objection (e.g. did not tell the jury to disregard the statement).

Darby was ultimately convicted of a lesser included offense of attempted first-degree murder – Attempted Manslaughter by Act. On appeal, Darby argued to the 4th DCA that:

• The trial judge erred as a matter of law by not instructing the jury to disregard the State’s comment
• This was NOT harmless error (e.g. may have impacted the verdict), so he was entitled to a new trial

The 4th DCA (Southeast FL’s highest court) agreed with Darby on the first point – but not the second, and AFFIRMED his convictions. Finding that the prosecutor did indeed misrepresent the law, the 4th DCA wrote:

“Here, we agree the circuit court erred by overruling the defendant’s objection to the prosecutor’s closing argument, which had incorrectly implied the defendant had a duty to retreat under the evidence presented. Section 776.012(2), Florida Statutes (2021), provides: A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be. § 776.012(2), Fla. Stat. (2021).”

“The defendant, when he returned to the alley with his handgun, arguably was not engaged in criminal activity, and was in a place where he had a right to be. Thus, the defendant did not have a duty to retreat, and had the right to stand his ground, if he reasonably believed the victim was using or threatening to use deadly force. As such, the circuit court erred in overruling the defendant’s objection to the prosecutor’s argument that “Defendant had no duty to retreat, it’s not in this situation.”

However, the 4th DCA concluded that because the comment was harmless error, Darby was not entitled to a new trial. Citing Almeida v. State, 737 So. 2d 520 (Fla. 1999), the 4th DCA wrote:

“However, the error was harmless. Where a trial court errs in overruling a defense objection to a prosecutor’s incorrect statement of law, the error can be harmless if: (1) The misstatement was presented to the jury in the context of closing argument by an advocate, not in the context of an instruction by the court; (2) the misstatement was an innocent one—the prosecutor was struggling with a subtle rule of law that is difficult to articulate; (3) although the prosecutor repeated the incorrect statement to the jury … [the prosecutor] minutes later read the proper instruction … ; (4) immediately following the prosecutor’s … improper statement, the court announced before the jury that (a) the court would be instructing them on the law, (b) they were to follow only its instructions, and (c) what the lawyers say is neither evidence nor law; (5) before the jury retired, the court also read the standard instruction to the jury; and (6) the jury took a copy of the standard instruction into the jury room during deliberations.”

“Here, five of the six Almeida factors are met. First, the prosecutor, not the circuit court, misstated the defendant’s duty to retreat. Second, the prosecutor’s misstatement appears to have been an innocent mistake, because only one minute earlier, the state had told the jury that the defendant “did not have a duty to retreat.” Third, although the prosecutor did not state the proper standard after misspeaking, the prosecutor had stated the proper standard before misspeaking. Fourth, after the prosecutor misspoke, the circuit court announced to the jury: “[Y]ou’ll get the law from me. Lawyers have a right to talk about the law.” Fifth, the circuit court later read the proper instruction to the jury: “Defendant had no duty to retreat before using deadly force.” Sixth, the jury took that proper instruction to the jury room during deliberations. Based on the foregoing, the circuit court’s error in overruling the defendant’s objection to the prosecutor’s closing argument—which had incorrectly implied the defendant had a duty to retreat under the evidence presented—was harmless beyond a reasonable doubt.”

Put simply, the 4th DCA ruled that because the misstatement of the Stand Your Ground law (and the trial judge’s erroneous overruling of the defendant’s objection) was “harmless error,” a new trial was not required in Darby’s case.

In sum, Darby v. State, — So.3d — (Fla. 4th DCA 2026) marks a significant development in Florida’s corpus of case law surrounding Stand Your Ground – and when misstatements of the law at trial are grounds for a defendant to receive a new one. The 4th DCA found:

• The State (e.g. the prosecutor) was INCORRECT to indicate to the jury that Darby had a duty to retreat, since he did not
• However, applying Almeida v. State, 737 So. 2d 520 (Fla. 1999), it could be said beyond a reasonable doubt that the jury’s eventual verdict was not impacted by the misstatement of the law
• Since the judge’s failure to sustain the defense’s objection to the prosecutor’s statement was harmless error, Darby’s conviction for attempted manslaughter by act was affirmed (and he DID NOT receive a new trial)

Florida’s criminal defense community should take note of Darby v. State, — So.3d — (Fla. 4th DCA 2026), as it makes clear when a new trial is and is not required in a Stand Your Ground case when the State misrepresents the law to the jury.

If someone is concerned about being charged with murder, manslaughter or a related offense, it is crucial to find experienced and aggressive legal representation as soon as possible. This vital decision could make the difference in whether or not a person is subject to a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting criminal charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

  Social Share