PETER DEVEAUGH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant is entitled to a jury instruction on his theory of the case, and failure to provide a requested instruction on justifiable use of non-deadly force, when supported by evidence, is not harmless error.
Appellant was charged with aggravated battery after a fight where he claimed self-defense. The trial court refused to instruct the jury on the justifi…
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DOWNEY, Judge.
Appellant, Peter Deveaugh, was charged by information with committing aggravated battery upon Phillip Apelquist. The charges arose out of a fistfight between appellant and Apelquist, which resulted in Apelquist suffering a broken nose and jaw. Apelquist is a large, 6’3”, man, weighing 230 pounds; while appellant is the holder of a brown belt in karate. Apelquist contends that appellant hit him without provocation, while appellant maintains that Apel-quist was the first aggressor and that he hit Apelquist in self defense.
At the close of the evidence appellant requested the court to instruct the jury in accordance with standard jury instruction 3.04(e), concerning justifiable use of non-deadly force. The court refused to do so but did instruct the jury, using standard instruction 3.04(d), concerning justifiable use of deadly force. The jury acquitted appellant on the aggravated battery charge, but found him guilty of simple battery and the court sentenced appellant to one year’s probation, restitution and fifty hours of community service.
It is apodictic that a party is entitled to have the jury instructed upon his theory of the case. The instruction on justifiable use of nondeadly force was of the essence of appellant’s defense and clearly should have been given.
The state, arguendo, contends that, if the court erred in not giving the requested instruction, it is harmless error because appellant was not convicted of aggravated conduct. However, based upon the factual scenario presented here, we are unable to say beyond a reasonable doubt that the result would not have been different had the jury been properly instructed. State v. DiGuilio, 491 So. 2d 1129 (Fla.1986).
Accordingly, the judgment and sentence are reversed and the cause is remanded for a new trial.
GUNTHER and POLEN, JJ., concur.
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Garramone v. State, 636 So. 2d 869 (Fla. 4th DCA 1994)…(Fla.1982), cert. denied, 462 U.S. 1145, 103 S.Ct. 3129, 77 L.Ed.2d 1379 (1983). The trial court should not weigh the evidence for the purpose of determining whether the instruction is appropriate. Smith. As Judge Downey stated in Deveaugh v. State, 575 So. 2d 1373, 1374 (Fla. 4th DCA 1991): It is apodictic that a party is entitled to have the jury instructed upon his theory of the ease. The instruction on justifiable use of nondeadly [sic] force was of the essence of appellant’s defense and clearly should ha…
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Gregory v. State, 937 So. 2d 180 (Fla. 4th DCA 2006)…. State, 871 So. 2d 1015, 1017 (Fla. 2d DCA 2004) (quoting Arthur v. State, 717 So. 2d 193, 194 (Fla. 5th DCA 1998)); Garramone v. State, 636 So. 2d 869 (Fla. 4th DCA 1994); Simon v. State, 589 So. 2d 381, 382 (Fla. 4th DCA 1991); Deveaugh v. State, 575 So. 2d 1373, 1374 (Fla. 4th DCA 1991); Cooper v. State, 573 So. 2d 74, 76 (Fla. 4th DCA 1990); Kilgore v. State, 271 So. 2d 148, 152 (Fla. 2d DCA 1972). The trial court should not weigh the evidence for the purpose of determining whether the instruction is app…
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Stewart v. State, 672 So. 2d 865 (Fla. 2d DCA 1996)…licable instruction should be given. See Miller v. State, 613 So. 2d 530 (Fla. 3d DCA 1993) (the firing of a firearm into the air, even as a so called warning shot, constitutes the use of deadly force as a matter of law). See also Deveaugh v. State, 575 So. 2d 1373 (Fla. 4th DCA 1991) (defendant claiming he had a fistfight in self-defense was entitled to an instruction on the justifiable use of nondeadly force). Even if we were to assume that the waving of the gun in the air was the use of deadly force, or th…
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- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)