ISMAEL NUNEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Ismael Nunez appealed his conviction for attempted second-degree murder, challenging the trial court's refusal to instruct the jury on self-defense and claiming error in the sentencing hearing. The Florida appellate court affirmed the conviction and sentence, finding insufficient evidentiary support for a self-defense instruction and no error in the sentencing process.
The trial court correctly refused the self-defense instruction because the defendant's bare assertion, without explanation of the circumstances, was insufficient to support such an instruction. The sentencing hearing presented no error because the defendant failed to request the opportunity to present mitigating evidence, and the trial court is not obligated to provide such opportunity absent a specific request.
[1] A trial court is not required to instruct a jury on self-defense based solely on a defendant's unelaborated assertion of self-defense.
[2] A defendant may not raise the issue of the trial court's failure to consider mitigating evidence at sentencing for the first time on appeal when no request was made to pr…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the trial court was not required to instruct the jury on self-defense based solely on the defendant's bald assertion of self-defense”
Establishes the standard that a self-defense instruction requires more than a bare assertion by the defendant; the evidence must explain the circumstances underlying the claim.
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Join FLexlaw to unlock all legal intelligenceNunez was convicted by jury verdict of attempted second-degree murder. At trial, the only evidence regarding self-defense came from a police detective…
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PER CURIAM.
This is an appeal by the defendant Ismael Nunez from a final judgment of conviction and sentence for attempted second-degree murder which was entered below upon an adverse jury verdict. We affirm.
First, we conclude that the trial court correctly refused to instruct the jury on self-defense because, simply stated, there was insufficient evidence adduced below to support such an instruction. The sole evidence at trial on the issue was the testimony of a police detective who stated that the defendant made an oral statement to the police that “ T stabbed the victim in self-defense.’ That he was assaulted by a group of males.” Plainly, this evidence was nothing more than an assertion of self-defense by the defendant and in no way explained the exact circumstances upon which the assertion was based. This being so, the trial court was not required to instruct the jury on self-defense based solely on the defendant’s bald assertion of self-defense. See Smiley v. State, 395 So. 2d 235, 236 (Fla. 1st DCA 1981); Bolin v. State, 297 So. 2d 317, 319 (Fla. 3d DCA) (“[I]t is within the province of the trial court whether or not the evidence, viewed most favorably to the defendant, is adequate to support an instruction on self-defense.”), cert. denied, 304 So. 2d 452 (Fla. 1974). But see Mills v. State, 490 So. 2d 204 (Fla. 3d DCA) (evidence of a “substantial character” shown), rev. denied, 494 So. 2d 1153 (Fla.1986); Kilgore v. State, 271 So. 2d 148, 152-53 (Fla. 2d DCA 1972) (same).
Second, we conclude that no error is presented with respect to the sentencing hearing conducted below. No request was made by the defendant below to present mitigating evidence at the hearing, and, accordingly, the defendant may not raise the issue for the first time on appeal. Although Fla.R.Crim.P. 3.720(b) requires the trial court at a sentencing hearing to “[e]ntertain submissions and evidence by the parties which are relevant to the sentence,” this rule is not violated when, as here, the defendant makes no offer to present such evidence or submissions at the sentencing hearing. Small v. State, 371 So. 2d 532 (Fla. 3d DCA 1979) and Mason v. State, 366 So. 2d 171 (Fla. 3d DCA 1979), relied on by the defendant, do not compel a contrary result because there, unlike the instant case, the defendant made a specific request to present mitigating evidence at the sentencing hearing and such request was denied in violation of Fla.R. Crim.P. 3.720(b).
The final judgment of conviction and sentence under review are, therefore, in all respects
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Kilgore v. State, 271 So. 2d 148 (Fla. 2d DCA 1972)
- Bolin v. State, 297 So. 2d 317 (Fla. 3d DCA 1974)
- Smiley v. State, 395 So. 2d 235 (Fla. 1st DCA 1981)
- City OF Hollywood v. Union Diversified Indus., Inc., 304 So. 2d 452 (Fla. 1974)
- Anderson v. Jefferson Stores, Inc., 304 So. 2d 452 (Fla. 1974)
- Mills v. State, 490 So. 2d 204 (Fla. 3d DCA 1986)
- Mason v. State, 366 So. 2d 171 (Fla. 3d DCA 1979)
- Small v. State, 371 So. 2d 532 (Fla. 3d DCA 1979)