JAMES CARUTHERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in denying a jury instruction on the justifiable use of nondeadly force when the evidence did not establish as a matter of law that the weapon used was deadly.
The defendant was charged with aggravated battery and claimed self-defense. The trial court instructed the jury on the justifiable use of deadly force…
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PER CURIAM.
James Caruthers appeals the judgment of the trial court in this misdemeanor battery case. Caruthers asserts, and the State concedes, that the trial court erred in denying his jury instruction on the justifiable use of nondeadly force. We agree and reverse.
The State charged Caruthers with two counts of aggravated battery and alleged that Caruthers used an ax handle to attack two men during an altercation. Caruthers denied using a weapon and claimed self-defense. At trial, both parties agreed that the court would read the self-defense instruction of justifiable use of deadly force. However, the court declined Caruthers’ request for an instruction on the justifiable use of nondeadly force. During the jury deliberations, the jury requested a rereading of the instruction on self-defense. The jury then found Ca-ruthers guilty of misdemeanor battery, a lesser included offense, on both counts.
Where a defendant asserts self-defense, if the defendant used force that is deadly or nondeadly as a matter of law, the court need only give the applicable jury instruction. See Stewart v. State, 672 So. 2d 865, 868 (Fla. 2d DCA 1996). However, when the evidence fails to establish whether the force used was deadly or nondeadly as a matter of law, the question must be determined by the jury. See id. The only act that has been deemed deadly as a matter of law is that of firing a firearm. See id.
There was no determination in this case, as a matter of law, that an ax handle was a deadly weapon. Therefore, it was error to refuse the instruction on the justifiable use of nondeadly force. Further, it is not harmless error where the court fails to instruct the jury on nondeadly force in an aggravated battery case involving a weapon that is not deadly as a matter of law. See DeLuge v. State, 710 So. 2d 83, 85 (Fla. 5th DCA 1998).
Reversed and remanded for a new trial on the charges of misdemeanor battery.
PARKER, C.J., and CAMPBELL and QUINCE, JJ., concur.
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Williams v. State, 727 So. 2d 1062 (Fla. 4th DCA 1999)…he victim’s chest with “the club.” This court stated, “although a knife is a weapon, it is not necessarily a deadly weapon. Clearly, the question of whether this club was a deadly weapon was an issue of fact.” See Id. at 465. In Caruthers v. State, 721 So. 2d 371 (Fla. 2d DCA 1998), the defendant was charged with aggravated battery by using an ax handle to attack two men during an altercation. The court read the instruction on justifiable use of deadly force, but declined the defendant’s request for an instr…
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McCOMB v. State, 174 So. 3d 1111 (Fla. 2d DCA 2015)…rgues that his trial counsel provided ineffective assistance when she failed to object to the omission of the jury instruction on justifiable use of nondeadly force. We agree. Clearly, McComb was entitled to the instruction. See Caruthers v. State, 721 So. 2d 371, 371-72 (Fla. 2d DCA 1998) (“[W]hen the evidence fails to establish whether the'force used was deadly or non-deadly as a matter of law, the question must be determined by the jury. The only act that has been deemed deadly as a matter of law is that…
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Rickie Mathis v. State, 863 So. 2d 464 (Fla. 1st DCA 2004)…stablish as a matter of law whether the type of force used was deadly or non-deadly, the defendant is entitled to instructions on the justifiable use of both types of force. Williams v. State, 727 So. 2d 1062 (Fla. 4th DCA 1999); Caruthers v. State, 721 So. 2d 371 (Fla. 2d DCA 1998). The only type of force that has been determined to be deadly as a matter of a law is discharging a firearm. Williams, 727 So. 2d at 1063. Thus, it appears from the limited record before this court that the appellant was entitled…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- DeLUGE v. State, 710 So. 2d 83 (Fla. 5th DCA 1998)
- Stewart v. State, 672 So. 2d 865 (Fla. 2d DCA 1996)