DocketNumber： 4D02-3588
Citation Numbers： 858 So. 2d 1210
Judges： Per Curiam
Filed Date： 11/12/2003
Status： Precedential
Modified Date： 3/3/2016
District Court of Appeal of Florida, Fourth District.
Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
We reverse appellant's conviction for aggravated battery because the trial court negated appellant's self-defense claim by instructing the jury that the use of force was not justified if appellant was committing or attempting to commit aggravated battery. In Giles v. State, 831 So.2d 1263, 1265 (Fla. 4th DCA 2002), we held that this instruction, which is based upon section 776.041, Florida Statutes (2002), was applicable only in circumstances where the person claiming self-defense is engaged in another independent forcible felony at the time. Giving this instruction where the only charge against the defendant is the aggravated battery, which also was the act that the defendant claimed was self-defense, would improperly negate the self-defense claim. See id. at 1266.
Although appellant did not object to this instruction, we hold that it is fundamental error. "An incorrect jury instruction on the defense of justifiable use of deadly and non-deadly force constitutes fundamental error if there is a reasonable possibility that the instruction may have led to the conviction." Thomas v. State, 831 So.2d 253, 253 (Fla. 3d DCA 2002) (citations omitted). We determined in Giles that this instruction was misleading, and it was reasonably possible that it contributed to Giles' conviction under circumstances similar to this case. 831 So.2d at 1266. In addition, we have held that fundamental *1211 error results where an inaccurate and misleading instruction negates a defendant's only defense. See Davis v. State, 804 So.2d 400, 404 (Fla. 4th DCA 2001).
Reversed and remanded.
GUNTHER, WARNER and MAY, JJ., concur.
Thomas v. State , 831 So. 2d 253 ( 2002 )
Davis v. State , 804 So. 2d 400 ( 2001 )
Martinez v. State , 981 So. 2d 449 ( 2008 )
Ocasio v. State , 994 So. 2d 1258 ( 2008 )
Barnes v. State , 969 So. 2d 1117 ( 2007 )
Baker v. State , 877 So. 2d 856 ( 2004 )
Cleveland v. State , 887 So. 2d 362 ( 2004 )
Zinnerman v. State , 942 So. 2d 932 ( 2006 )
Zuniga v. State , 869 So. 2d 1239 ( 2004 )
Estevez v. State , 901 So. 2d 989 ( 2005 )
Jackson v. State , 935 So. 2d 107 ( 2006 )
Hawk v. State , 902 So. 2d 331 ( 2005 )
Granberry v. State , 919 So. 2d 699 ( 2006 )
Dunnaway v. State , 883 So. 2d 876 ( 2004 )
Bevan v. State , 908 So. 2d 524 ( 2005 )
Carter v. State , 889 So. 2d 937 ( 2004 )
Bertke v. State , 927 So. 2d 76 ( 2006 )
Ruiz v. State , 900 So. 2d 733 ( 2005 )
Hardy v. State , 901 So. 2d 985 ( 2005 )
Craven v. State , 908 So. 2d 523 ( 2005 )
Hernandez v. State , 884 So. 2d 281 ( 2004 )