NELSON VELAZQUEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed a conviction for attempted second-degree murder because the trial court's jury instruction on the forcible felony exception to self-defense constituted fundamental error by essentially negating the self-defense claim when the defendant committed a single act.
A jury instruction on the forcible felony exception to self-defense constitutes fundamental error when it is given in a case where the defendant committed a single act and claimed self-defense, even absent objection at trial.
[1] A jury instruction on the forcible felony exception to self-defense under Florida Statutes section 776.041(1) constitutes fundamental error when applied to a defendant wh…
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Join FLexlaw to unlock all legal intelligenceNelson Velazquez was convicted of attempted second-degree murder and sentenced to life imprisonment. The trial court instructed the jury that use of f…
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NORTHCUTT, Judge.
Nelson Velazquez appeals his conviction and life sentence for attempted second-degree murder. We reverse based on fundamental error in the jury instruction on self-defense.
As part of the jury instruction on self-defense, the trial court gave an instruction on the forcible felony exception to self-defense. The trial court instructed the jury that “the use of force likely to cause death or great bodily harm is not justifiable if you find: 1. Nelson M. Velazquez was attempting to commit, committing, or escaping after the commission of Attempted Second Degree Murder with a Weapon.” This instruction, based on section 776.041(1), Florida Statutes (2002), “is applicable only in circumstances where the person claiming self-defense is engaged in another independent forcible felony at the time.” Cleveland v. State, 2004 WL 1530876, 887 So. 2d 362, 363 (Fla. 5th DCA July 9, 2004). Although defense counsel made no objection at trial, this court has held that the instruction essentially negates the defense and constitutes fundamental error when a defendant committed a single act and claimed self-defense. See Zuniga v. State, 869 So. 2d 1239 (Fla. 2d DCA 2004); Baker v. State, 877 So. 2d 856 (Fla. 2d DCA 2004); see also Giles v. State, 831 So. 2d 1263 (Fla. 4th DCA 2002). We appreciate the State’s candor in briefing this issue. Accordingly, we reverse and remand for a new trial.
Reversed and remanded.
SALCINES and COVINGTON, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (21 total)
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Martinez v. State, 981 So. 2d 449 (Fla. 2008)…la. 5th DCA 2006); Newcomb v. State, 913 So. 2d 1293 (Fla. 2d DCA 2005); Craven v. State, 908 So. 2d 523 (Fla. 4th DCA 2005); Ruiz v. State, 900 So. 2d 733 (Fla. 4th DCA 2005); Swanson v. State, 921 So. 2d 852 (Fla. 2d DCA 2006); Velazquez v. State, 884 So. 2d 377 (Fla. 2d DCA 2004). . The jury was instructed as follows: However, the use of force likely to cause death or great bodily harm is not justifiable if you find: 1. Eric Martinez was attempting to commit, committing or escaping after the commission…
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Carter v. State, 889 So. 2d 937 (Fla. 5th DCA 2004)…), Florida Statutes, which “is applicable only in circumstances where the person claiming self-defense is engaged in another independent forcible felony at the time.” Cleveland v. State, 887 So. 2d 362 (Fla. 5th DCA 2004). Accord Velazquez v. State, 884 So. 2d 377 (Fla. 2d DCA 2004); Giles v. State, 831 So. 2d 1263 (Fla. 4th DCA 2002). As emphasized by this ' Court in Cleveland, The forcible felony instruction is given in situations where the accused is charged with at least two criminal acts, the act for w…
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Mister Hawk v. State, 902 So. 2d 331 (Fla. 5th DCA 2005)…eveland that giving the instruction rose to the level of fundamental error. Accord Carter v. State, 889 So. 2d 937 (Fla. 5th DCA 2004). The Second and Fourth District Courts of Appeal have also held that the error is fundamental. Velazquez v. State, 884 So. 2d 377 (Fla. 2d DCA 2004); Dunnaway v. State, 883 So. 2d 876 (Fla. 4th DCA 2004); Rich v. State, 858 So. 2d at 1210; see also York v. State, 891 So. 2d 569 (Fla. 2d DCA 2004)(appellate counsel was ineffective for failing to raise issue on direct appeal as…
Previewing 3 of 21 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)
- Zuniga v. State, 869 So. 2d 1239 (Fla. 2d DCA 2004)
- Cleveland v. State, 887 So. 2d 362 (Fla. 5th DCA 2004)
- Baker v. State, 877 So. 2d 856 (Fla. 2d DCA 2004)