MAURICE HOWARD, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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PER CURIAM.
As the State properly concedes, the trial court erred in not giving the jury an instruction on defense of property, upon request of the defendant, where ample evidence existed in the record to support the giving of this instruction.
The law is clear that a defendant is entitled to have the jury instructed on the law applicable to his theory of defense where there is any evidence introduced in support thereof. Bryant v. State, 412 So. 2d 347 (Fla.1982); Palmes v. State, 397 So. 2d 648 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981); Biscardi v. State, 511 So. 2d 575 (Fla. 4th DCA 1987). Moreover, failure to give an instruction on a defense encompassed withm the evidence is fundamental error, reviewable even in the absence of a specifically requested instruction or objection. Thomas v. State, 526 So. 2d 183 (Fla. 3d DCA), review denied, 536 So. 2d 245 (Fla.1988); Tobey v. State, 533 So. 2d 1198 (Fla. 2d DCA 1988), review denied, 542 So. 2d 990 (Fla.1989). Given our disposition on this point it is unnecessary to reach the defendant’s remaining point on appeal.
Reversed and remanded for a new trial.
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Alfaro v. State, 837 So. 2d 429 (Fla. 4th DCA 2002)…m of right defense, then failure of the trial court to instruct the jury regarding such defense, even absent a request for a claim of right instruction or objection to its omission, constitutes fundamental error. Id. at 1058 (citing Howard v. State, 561 So. 2d 1362, 1362 (Fla. 3d DCA 1990); Tobey v. State, 533 So. 2d 1198, 1200 (Fla. 2d DCA 1988); Thomas v. State, 526 So. 2d 183, 184 (Fla. 3d DCA 1988)). We take this opportunity to clarify that we do not adopt these holdings, as we believe that they are in con…
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Abdullah Hakeem Muteei v. State, 708 So. 2d 626 (Fla. 3d DCA 1998)…e appropriate instruction was neither requested nor given, in Motley the instruction was given but was erroneous and misleading. The defense attorney’s efforts at clarification were unsuccessful. . Although not relied on by Muteei, Howard v. State, 561 So. 2d 1362 (Fla. 3d DCA 1990), reiterates the Thomas conclusion that failure to give an instruction on a defense encompassed within the evidence is fundamental error, reviewable even in the absence of a specifically requested instruction or objection. We note…
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Torin L. Chalmers v. State, 789 So. 2d 1057 (Fla. 4th DCA 2001)…l basis of their defense, and reversed the convictions. Id. at 798-99. Here, defense counsel failed to request a claim of right instruction or object to its omission. Such an omission has been found to constitute fundamental error. Howard v. State, 561 So. 2d 1362, 1362 (Fla. 3d DCA 1990); Tobey v. State, 533 So. 2d 1198, 1200 (Fla. 2d DCA 1988); Thomas v. State, 526 So. 2d 183, 184 (Fla. 3d DCA 1988). Chalmers contends that his theory of defense was that he was entitled to hold the property until Cook paid…
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- Johnson v. Florida, 454 U.S. 882 (U.S. 1981)
- Palmes v. State, 397 So. 2d 648 (Fla. 1981)
- Bryant v. State, 412 So. 2d 347 (Fla. 1982)
- THE Florida BAR v. Aronson, 412 So. 2d 347 (Fla. 1982)
- Cyrus Biscardi v. State, 511 So. 2d 575 (Fla. 4th DCA 1987)
- Tobey v. State, 533 So. 2d 1198 (Fla. 2d DCA 1988)
- Thomas v. State, 526 So. 2d 183 (Fla. 3d DCA 1988)