DEMETRIUS FAIR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Fourth District Court of Appeal reversed Demetrius Fair's murder conviction and remanded for a new trial, finding that the trial court committed fundamental error by instructing the jury that justification could not be found if Fair was committing a robbery, when Fair was charged only with second-degree murder and the evidence suggested the victim may have initiated the altercation.
The trial court's instruction was fundamental error because it was reasonably calculated to confuse or mislead the jury by negating Fair's sole defensive theory. The forcible felony self-defense instruction is proper only when a defendant is charged with more than one forcible felony, and it was improper here where Fair was not charged with robbery.
[1] A jury instruction is fundamentally erroneous if it is reasonably calculated to confuse or mislead the jury.
[2] A jury instruction that negates a defendant's sole defensive theory constitutes fundamental error.
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Standard for fundamental error in jury instructions that negate a defendant's sole defensive theory
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Join FLexlaw to unlock all legal intelligenceFair was charged with second-degree murder and asserted a justification defense. The trial court instructed the jury that justification could not be f…
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PER CURIAM.
After granting Fair’s petition for writ of habeas corpus, alleging ineffective assistance of appellate counsel, we now reverse his conviction and remand for a new trial. See Giles v. State, 831 So. 2d 1263 (Fla. 4th DCA 2002).
The facts of this case are fully set forth in our prior opinion. Fair v. Crosby, 858 So. 2d 1103 (Fla. 4th DCA 2003).
Fair asserted a justification defense to the sole charge of murder in the second degree and the trial court instructed the jury that justification could not be found if Fair was in the process of committing a robbery.1 After a review of the entire record on appeal, we conclude this to be fundamental error as it “was reasonably calculated to confuse or mislead the jury,” thus requiring the same result as in Giles. See Giles, 831 So. 2d at 1263 (quoting Barton Protective Servs., Inc. v. Faber, 745 So. 2d 968, 974 (Fla. 4th DCA 1999)); see also Davis v. State, 804 So. 2d 400, 404 (Fla. 4th DCA 2001) (fundamental error to give misleading instruction negating sole defensive theory).
Giving the forcible felony, self-defense instruction is proper only when the defendant is charged with more than one forcible felony. Giles, 831 So. 2d at 1265-66. The same is true in the instant case, where Fair was not charged with robbery, and it was the victim who may have instigated the altercation by attempting a robbery.
Reversed and Remanded.
GUNTHER, POLEN and HAZOURI, JJ., concur. . As we noted in our prior opinion, it is unclear why the trial judge included the term "robbery” in the instruction instead of "murder in the second degree” as Fair was not charged with robbery, although there was some evidence presented that the incident may have been instigated due to a dispute over money owed to the victim. See Fair, 858 So. 2d at 1104 n. 2.
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Martinez v. State, 981 So. 2d 449 (Fla. 2008)…r occurred); York v. State, 932 So. 2d 413, 416 (Fla. 2d DCA 2006) (holding that fundamental error occurred where the defendant’s self-defense claim was supported by testimony and “the disputed issue in the case was who fired first”); Fair v. State, 902 So. 2d 965, 965-66 (Fla. 4th DCA 2005) (holding that fundamental error occurred where “it was the victim who may have instigated the altercation by attempting a robbery”); Estevez v. State, 901 So. 2d 989, 989 (Fla. 4th DCA 2005). The only cases in which dist…
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Granberry v. State, 919 So. 2d 699 (Fla. 5th DCA 2006)…or. The court opined that fundamental error results when an inaccurate or misleading jury instruction negates a defendant’s only defense. See also Sloss v. State, 30 Fla. L. Weekly D2328, 2005 WL 2396309 (Fla. 5th DCA Sept. 30, 2005); Fair v. State, 902 So. 2d 965 (Fla. 4th DCA 2005); Hawk v. State, 902 So. 2d 331 (Fla. 5th DCA 2005); Carter v. State, 889 So. 2d 937 (Fla. 5th DCA 2004), review denied, 903 So. 2d 190 (Fla.2005); Cleveland v. State, 887 So. 2d 362 (Fla. 5th DCA 2004). In York v. State, 891 So.…
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Shepard v. Crosby, 916 So. 2d 861 (Fla. 4th DCA 2005)…truction in cases where the defendant is charged with an offense as to which the defendant relies on self-defense. See Craven v. State, 908 So. 2d 523 (Fla. 4th DCA 2005); see also Estevez v. State, 901 So. 2d 989 (Fla. 4th DCA 2005); Fair v. State, 902 So. 2d 965 (Fla. 4th DCA 2005). In Giles v. State, 831 So. 2d 1263, 1265 (Fla. 4th DCA 2002), we held that this jury instruction “was applicable only in circumstances where the person claiming self-defense is engaged in another independent forcible felony at…
Previewing 3 of 5 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)
- Davis v. State, 804 So. 2d 400 (Fla. 4th DCA 2001)
- Barton Protective Servs., Inc. v. Faber, 745 So. 2d 968 (Fla. 4th DCA 1999)
- Fair v. Crosby, 858 So. 2d 1103 (Fla. 4th DCA 2003)