FLOYD EUGENE MATHEWS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant appealed his conviction for aggravated battery, challenging the trial court's refusal to give a jury instruction on justifiable use of nondeadly force and raising a constitutional challenge to the Criminal Punishment Code. Although the court agreed the trial court erred by failing to provide the requested instruction, it affirmed because the issues were not properly preserved for appeal.
The trial court erred by failing to give the requested jury instruction on justifiable use of nondeadly force because the evidence supported this theory of defense and the force used (hands and feet) was not deadly as a matter of law. However, both issues were not preserved for appeal due to insufficient objection by defense counsel.
[1] A defendant is entitled to a jury instruction on any theory of defense supported by substantive evidence, regardless of its perceived weakness or improbability.
[2] A trial court should decide whether to give a jury instruction without weighing the evidence.
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Join FLexlaw to unlock all legal intelligence“Upon request, a defendant is entitled to a jury instruction on any theory of defense the substantive evidence supports, however weak or improbable his testimony may have been.”
Establishes the standard for jury instructions on self-defense theories and places the burden on trial courts to give instructions supported by evidence without weighing credibility.
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Join FLexlaw to unlock all legal intelligenceAppellant used his hands and feet in committing an offense that resulted in aggravated battery charges. The trial court denied his request for a jury …
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BROWNING, J.
Appellant appeals his judgment and sentence, alleging the trial court erred by denying his request for a jury instruction on the justifiable use of nondeadly force, and that the Criminal Punishment Code is unconstitutional. Although we agree the trial court erred by failing to give the requested jury instruction, we affirm as to both issues because they were not preserved.
Upon request, a defendant is entitled to a jury instruction on any theory of defense the substantive evidence supports, however weak or improbable his testimony may have been. See Rockerman v. State, 773 So. 2d 602, 603 (Fla. 1st DCA 2000); Arthur v. State, 717 So. 2d 193, 194 (Fla. 5th DCA 1998). Weighing the evidence is the sole prerogative of the jury, and the trial court should decide whether to give an instruction without weighing the evidence. See Rockerman, 773 So. 2d at 603. When the evidence does not establish that the force used was deadly or non-deadly as a matter of law, the jury should be allowed to decide the question. See Stewart v. State, 672 So. 2d 865, 868 (Fla. 2d DCA 1996); see also Marshall v. State, 747 So. 2d 1045 (Fla. 4th DCA 2000). Only a firearm’s discharge has been held to be deadly force as a matter of law. See Williams v. State, 727 So. 2d 1062, 1063 (Fla. 4th DCA 1999); see also DeLuge v. State, 710 So. 2d 83, 84 n. 2 (Fla. 5th DCA 1998); Stewart, 672 So. 2d at 868; Miller v. State, 613 So. 2d 530 (Fla. 3d DCA 1993).
Appellant used his hands and feet while committing the offense that resulted in his being charged with aggravated battery. Because Appellant did not use a firearm while committing his offense, his use of force was not deadly as a matter of law. As the trial court noted, an issue in the case was whether Appellant acted in self-defense. Thus, Appellant was entitled to the jury instruction on the justifiable use of non-deadly force, the jury should have decided whether the force used by Appellant was deadly or non-deadly, and the trial court erred by failing to give the requested instruction.
However, the issue is not preserved for appeal because counsel failed to make a sufficient objection to the trial court’s denial of the requested instruction. Counsel asked for the instruction on the justifiable use of non-deadly force, and the trial court stated its reasons for giving the instruction for the justifiable use of deadly force rather than the instruction on non-deadly force as requested. Defense counsel then responded: “Yes, sir, I see that Your Honor. We just thought there was no harm in asking.” Furthermore, after the trial court completed instructing the jury on the justifiable use of deadly force, it inquired “[n]ow, are there any objections to the instructions as read or presented or any requested modifications or additions to same?” Defense counsel, in response, stated “[w]e’re not going to object to anything at this time, Your Honor.” An objection must be clear and unequivocal, and point out to the trial court the specific ground asserted for judicial action. See Occhicone v. State, 570 So. 2d 902, 905 (Fla.1990); Ladd v. State, 715 So. 2d 1012, 1016 (Fla. 1st DCA 1998). Counsel’s statements were insufficient to preserve the issue for appeal.
Appellant’s constitutional challenge to the Criminal Punishment Code is likewise not preserved because it was neither argued below nor presented to the trial court in a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct sentence. See Maddox v. State, 760 So. 2d 89, 98 (Fla.2000); Salters v. State, 758 So. 2d 667, 669 n. 4 (Fla.2000). Accordingly, the trial court is AFFIRMED.
BOOTH and BENTON, JJ., CONCUR.
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Durousseau v. State, 55 So. 3d 543 (Fla. 2010)…3 So. 2d 613, 624 (Fla.2001)). “Weighing the evidence is the sole prerogative of the jury and the trial court should give an instruction without weighing the evidence.” Cruz v. State, 971 So. 2d 178, 182 (Fla. 5th DCA 2007) (citing Mathews v. State, 799 So. 2d 265, 266 (Fla. 1st DCA 2001)). When collateral crime evidence is introduced, the trial court need only instruct the jury at the time of admission, if so requested, and after the close of the evidence. Rivers, 425 So. 2d at 102. Here the trial court did…
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Cruz v. State, 971 So. 2d 178 (Fla. 5th DCA 2007)…nd the defendant is entitled to jury instructions on the justifiable use of both types of force. Id.; see also Mathis v. State, 973 So. 2d 1153, 2006 WL 3017251 (Fla. 1st DCA Oct. 25, 2006), rev. denied, 954 So. 2d 1156 (Fla.2007); Mathews v. State, 799 So. 2d 265 (Fla. 1st DCA 2001). Weighing the evidence is the sole prerogative of the jury and the trial court should decide whether to give an instruction without weighing the evidence. Mathews, 799 So. 2d at 266. In Florida, the only type of force that has b…
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Grimsley v. State, 939 So. 2d 123 (Fla. 2d DCA 2006)…, then the jury should decide the question and the defendant is entitled to instructions on both justifiable use of deadly force and justifiable use of nondeadly force. Caruthers v. State, 721 So. 2d 371, 371-72 (Fla. 2d DCA 1998); Mathews v. State, 799 So. 2d 265, 266 (Fla. 1st DCA 2001); Williams v. State, 727 So. 2d 1062, 1062 (Fla. 4th DCA 1999). The evidence in this case does not establish that the force used by Grimsley was deadly or nondeadly as a matter of law. Accordingly, Grimsley was entitled to bo…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Maddox v. State, 760 So. 2d 89 (Fla. 2000)
- Salters v. State, 758 So. 2d 667 (Fla. 2000)
- Occhicone v. State, 570 So. 2d 902 (Fla. 1990)
- DeLUGE v. State, 710 So. 2d 83 (Fla. 5th DCA 1998)
- Miller v. State, 613 So. 2d 530 (Fla. 3d DCA 1993)
- Stewart v. State, 672 So. 2d 865 (Fla. 2d DCA 1996)
- K. K. v. State, 717 So. 2d 193 (Fla. 5th DCA 1998)
- Ladd v. State, 715 So. 2d 1012 (Fla. 1st DCA 1998)
- Arthur v. State, 717 So. 2d 193 (Fla. 5th DCA 1998)
- Williams v. State, 727 So. 2d 1062 (Fla. 4th DCA 1999)