With this conclusion in mind, we now address why giving the instruction on a duty to retreat was fundamental error. An instructive case on this issue is Richards v. State, 39 So.3d 431 (Fla. 2d DCA 2010). In Richards, the defendant was charged with attempted murder in the second degree after he stabbed a friend. The defendant claimed the stabbing was done in self-defense. Without objection from defense counsel, the trial court instructed the jury using the pre-2005 duty to retreat instructions, even though the incident occurred after 2005. Id. at 433. Observing that the duty to retreat was eliminated in 2005, the Second District held the trial court committed fundamental error by giving this instruction. Id.; see also Williams v. State, 982 So.2d 1190, 1193-94 (Fla. 4th DCA 2008) (<HOLDING>). In particular, the court in Richards focused
holding the trial court erred in failing to instruct the jury that defendant claiming selfdefense had no duty to retreat holding that when both parties agree that the facts of the case entitled defendant to a selfdefense instruction failing to so instruct the jury was error holding it was fundamental error to instruct the jury using the pre2005 duty to retreat instruction when the incident occurred after the enactment of the current stand your ground law holding that the defense provided in section 7760121 is available to persons engaged in an unlawful activity and explaining that the addition of the words and does not have a duty to retreat to section 776012 had the effect of abrogating the common law duty to retreat before using deadly force outside the home under the circumstances indicated therein holding that the plain error and harmless error standards of review merge in the ease of jury instructions because the duty to properly instruct the jury lies with the trial court