HARRY BATES, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Harry Bates was convicted of improper exhibition of a firearm after pointing a shotgun barrel at customers in a Walmart parking lot. The Florida Second District Court of Appeal reversed and remanded for a new trial, finding that the trial court's self-defense jury instruction improperly negated Bates' self-defense claim by instructing the jury that self-defense was unavailable when the defendant was committing the same forcible felony for which he claimed self-defense.
The court held that the self-defense instruction was fundamental, reversible error. The instruction should only be given when the defendant was engaged in an independent forcible felony separate from the forcible felony for which self-defense is claimed. Where all counts stemmed from the same act that formed the basis of both the offense and the self-defense claim, giving this instruction improperly negated the self-defense claim.
[1] A jury instruction stating that the use of nondeadly force is not justifiable if the defendant was attempting to commit, committing, or escaping after the commission of a…
[2] Giving a jury instruction that improperly negates a defendant's self-defense claim constitutes fundamental error.
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Join FLexlaw to unlock all legal intelligence“Giving this instruction where the only charge against the defendant is the aggravated battery, which also was the act that the defendant claimed was self-defense, would improperly negate the self-defense claim.”
Establishes the core legal principle that self-defense instructions limiting self-defense during commission of a forcible felony should not apply when that same forcible felony is the basis of the charges and the self-defense claim.
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Join FLexlaw to unlock all legal intelligenceAfter a parking lot dispute at Walmart on the day after Thanksgiving, Bates pointed a shotgun barrel (covered with a white towel) at Aretha Welsh and …
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DAVIS, Judge.
Harry Bates, Jr., challenges his conviction for improper exhibition of a firearm, arguing that he only displayed the barrel of a shotgun, not the entire shotgun, and that the trial court gave improper jury instructions regarding self-defense. While we find no merit in Bates’ argument that he did not improperly display a firearm,1 we reverse and remand for a new trial because we conclude that the self-defense jury instruction that the trial court gave amounted to fundamental, reversible error. Bates was initially charged with three counts of aggravated assault, and the jury found him guilty of three counts of the lesser included charge of improper exhibition of a firearm. Two of the three counts were later vacated for reasons not relevant to this appeal.
These proceedings arose out of events that occurred in a Wal-Mart parking lot on the day after Thanksgiving. After shopping, Aretha Welsh, her son, and her nephew had gotten into her car in the parking lot when they discovered that Bates’ truck was blocking their egress from the parking spot. Welsh honked her horn, and Bates came up to her car window. When Welsh asked Bates to move his truck, Bates called Welsh a name; Welsh and the two boys then exited the vehicle. A dispute ensued that included a great deal of yelling and name-calling. Although Bates subsequently got into his truck and moved it forward slightly, he then put it into reverse and began pointing what appeared to be a shotgun covered with a white towel at Welsh and the two boys through the truck’s window while he threatened them verbally. They could see the two holes of the barrel of a double-barreled shotgun beneath the white towel. Bates then drove away but returned soon afterwards, at which point the police officers who had responded to the scene arrested him. Bates was charged with three counts of aggravated assault.
It was determined at trial that what Bates had pointed at Welsh and the two boys was not a complete shotgun; it was only the barrel of a shotgun covered with a white towel. Bates claimed at trial that he was acting in self-defense when he pointed the barrel of the shotgun at them because he became afraid when the teenage boys exited the car and approached him.
The offending jury instruction read as follows: “The use of nondeadly force is not justifiable if you find the following: One, the defendant was attempting to commit, committing or escaping after the commission of Aggravated Assault.”
Although Bates’ trial counsel did not object to the trial court giving this instruction, it has been held that this instruction should be given only when the person claiming self-defense was engaged in another independent forcible felony at the time, not the forcible felony as to which the defendant claims self-defense.2 “Giving this instruction where the only charge against the defendant is the aggravated battery, which also was the act that the defendant claimed was self-defense, would improperly negate the self-defense claim.” Rich v. State, 858 So. 2d 1210, 1210 (Fla. 4th DCA 2003); Giles v. State, 831 So. 2d 1263, 1265 (Fla. 4th DCA 2002); see also Baker v. State, 877 So. 2d 856, 29 Fla. L. Weekly D1617 (Fla. 2d DCA July 9, 2004).
Although Bates was initially charged with three counts of aggravated assault, all three counts stemmed from the same act occurring at the same time. Therefore, the act that formed the basis for Bates’ offense, aggravated assault, was the same act that Bates claimed demonstrated that he was acting in self-defense. As such, giving the jury instruction here had the effect of improperly negating Bates’ self-defense claim. Because giving this instruction under such circumstances has been held to be fundamental error, Rich, 858 So. 2d 1210; Giles, 831 So. 2d 1263, we must reverse and remand for a new trial.
Reversed and remanded.
SILBERMAN and CANADY, JJ., Concur. . See State v. Ware, 253 So. 2d 145 (Fla. 2d DCA 1971); State v. Altman, 432 So. 2d 159 (Fla. 3d DCA 1983).
. Aggravated assault is a forcible felony. § 776.08, Fla. Stat. (2003).
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Citator
Cited By (11 total)
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York v. State, 932 So. 2d 413 (Fla. 2d DCA 2006)…9 (Fla. 2d DCA 2005); Brown v. State, 909 So. 2d 975 (Fla. 2d DCA 2005); Bevan v. State, 908 So. 2d 524 (Fla. 2d DCA 2005); Velazquez v. State, 884 So. 2d 377 (Fla. 2d DCA 2004); Hernandez v. State, 884 So. 2d 281 (Fla. 2d DCA 2004); Bates v. State, 883 So. 2d 907 (Fla. 2d DCA 2004). Other courts have done likewise. See Grier v. State, 928 So. 2d 368 (Fla. 3d DCA 2006); Estevez v. State, 901 So. 2d 989 (Fla. 4th DCA 2005); Cleveland v. State, 887 So. 2d 362 (Fla. 5th DCA 2004). Here, as in Zuniga^ the errone…
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Williams v. State, 901 So. 2d 899 (Fla. 4th DCA 2005)…away v. State, 883 So. 2d 876, 878 (Fla. 4th DCA 2004); Hickson v. State, 873 So. 2d 474, 475 (Fla. 4th DCA 2004); Carter v. State, 889 So. 2d 937, 939 (Fla. 5th DCA 2004); Cleveland v. State, 887 So. 2d 362, 363 (Fla. 5th DCA 2004); Bates v. State, 883 So. 2d 907, 907-08 (Fla. 2d DCA 2004); Velazquez v. State, 884 So. 2d 377, 377-78 (Fla. 2d DCA 2004); Baker v. State, 877 So. 2d 856, 857 (Fla. 2d DCA 2004); Zuniga v. State, 869 So. 2d 1239, 1239-40 (Fla. 2d DCA 2004). To give the section 776.041(1) jury ins…
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Heriberto Vila v. State, 74 So. 3d 1110 (Fla. 5th DCA 2011)…o whether the defendant surren [*1113] dered his right to self-defense pursuant to section 776.041. See generally Redding v. State, 41 So. 3d 353, 354 (Fla. 2d DCA 2010); Cancel v. State, 985 So. 2d 1127, 1129-30 (Fla. 5th DCA 2008); Bates v. State, 883 So. 2d 907, 908 (Fla. 2d DCA 2004). If evidence exists that raises self-defense as an issue, the proper approach is to offer the self-defense instruction with the forcible felony or initial provocation exceptions. See generally Cancel, 985 So. 2d at 1127. Non…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lamonda D. Giles v. State, 831 So. 2d 1263 (Fla. 4th DCA 2002)
- Rich v. State, 858 So. 2d 1210 (Fla. 4th DCA 2003)
- Baker v. State, 877 So. 2d 856 (Fla. 2d DCA 2004)
- State v. Altman, 432 So. 2d 159 (Fla. 3d DCA 1983)
- State v. Ware, 253 So. 2d 145 (Fla. 2d DCA 1971)