ANDREW BEVAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Andrew Bevan appeals his convictions for criminal mischief, assault, and battery arising from an altercation over construction work on a neighbor's property. The appellate court affirmed his battery conviction but reversed his assault and criminal mischief convictions due to a defective jury instruction on self-defense that was circular and prevented proper consideration of Bevan's self-defense claim.
The trial court's self-defense instruction was fundamentally erroneous because it was circular and prevented the jury from properly considering self-defense for the assault and criminal mischief charges. The conviction for battery is affirmed because self-defense was not an issue as to that charge. The convictions for assault and criminal mischief are reversed and remanded for a new trial.
[1] A jury instruction on self-defense is fundamentally erroneous if it states that the use of force is not justified when the defendant is attempting to commit, committing,…
[2] A jury instruction that defines self-defense in a circular manner, where the acts sought to be justified as self-defense cannot be considered self-defense under the instr…
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Join FLexlaw to unlock all legal intelligence“The jury instruction given was circular. If a jury obeyed the literal language of the instruction, then it was required to find that the very acts which Mr. Bevan sought to justify as self-defense could not be considered self-defense.”
The court's explanation of why the self-defense instruction constituted fundamental error and required reversal
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Join FLexlaw to unlock all legal intelligenceBevan was charged with battery, aggravated assault, and criminal mischief after allegedly confronting two men installing a pool enclosure on a neighbo…
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ALTENBERND, Judge.
Andrew Bevan appeals his convictions for felony criminal mischief, two counts of assault, and one count of misdemeanor battery. We affirm his conviction for battery. We reverse his convictions for assault and criminal mischief because the trial court gave a jury instruction on self-defense that has been held to constitute fundamental error. See Estevez v. State, 901 So. 2d 989 (Fla. 4th DCA 2005).
Mr. Bevan was charged with battery, aggravated assault, and criminal mischief as a result of an altercation in which he allegedly confronted two men installing a pool enclosure on a neighbor’s property. Mr. Bevan allegedly chased and threatened the men with golf clubs, threw their tools into a pool, and severely damaged their truck by ramming it with his car and beating the windows out with a golf club. The trial was delayed because Mr. Bevan was found to be incompetent.
At trial, Mr. Bevan argued that the battery never occurred, and his sole defense to the aggravated assault and criminal mischief charges was self-defense. The trial court instructed the jury that the use of force would not be justified if it found that Mr. Bevan “was attempting to commit, committing, or escaping after the commission of Aggravated Assault or Criminal Mischief.” The jury convicted Mr. Bevan of battery, criminal mischief, and the lesser offense of simple assault.
The jury instruction given was circular. If a jury obeyed the literal language of the instruction, then it was required to find that the very acts which Mr. Bevan sought to justify as self-defense could not be considered self-defense. See Rich v. State, 858 So. 2d 1210 (Fla. 4th DCA 2003); Giles v. State, 831 So. 2d 1263, 1266 (Fla. 4th DCA 2002). Thus, we must reverse Mr. Bevan’s convictions for assault and criminal mischief and remand the case for a new trial. See Hardy v. State, 901 So. 2d 985 (Fla. 4th DCA 2005); Rich, 858 So. 2d at 1210-11. Because self-defense was not an issue as to the charge of battery, that conviction is not affected by this issue. We have considered Mr. Bevan’s remaining issues and conclude that they do not warrant reversal.
Affirmed in part, reversed in part, and remanded for a new trial.
WALLACE, J., and LEVENS, WILLIAM P., Associate Judge, Concur.
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Martinez v. State, 981 So. 2d 449 (Fla. 2008)…on in Martinez explain in any way why a defendant is entitled to relief where a forcible-felony instruction has been erroneously given only if it is the sole defensive position. See Grier v. State, 928 So. 2d 368 (Fla. 3d DCA 2006); Bevan v. State, 908 So. 2d 524 (Fla. 2d DCA 2005); Hardy v. State, 901 So. 2d 985 (Fla. 4th DCA 2005); Estevez v. State, 901 So. 2d 989 (Fla. 4th DCA 2005); Williams v. State, 901 So. 2d 899 (Fla. 4th DCA 2005); Dunnaway v. State, 883 So. 2d 876 (Fla. 4th DCA 2004); Carter v. Sta…
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York v. State, 932 So. 2d 413 (Fla. 2d DCA 2006)…Zuniga in holding that where self-defense was at issue, the giving of a similar erroneous instruction was fundamental error. See Houston v. State, 919 So. 2d 489 (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…
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Yolinda Wright Zinnerman v. State, 942 So. 2d 932 (Fla. 5th DCA 2006)…th at least two independent criminal acts. Hawk v. State, 902 So. 2d 331 (Fla. 5th DCA 2005); Cleveland v. State, 887 So. 2d 362 (Fla. 5th DCA 2004). Otherwise, the instruction is circular and negates the defense of self-defense. See Bevan v. State, 908 So. 2d 524 (Fla. 2d DCA 2005); Estevez v. State, 901 So. 2d 989 (Fla. 4th DCA 2005); Williams v. State, 901 So. 2d 899 (Fla. 4th DCA), review denied, 913 So. 2d 598 (Fla.2005). Several cases have recognized that instructing the jury in such a manner constitut…
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
- Lamonda D. Giles v. State, 831 So. 2d 1263 (Fla. 4th DCA 2002)
- Rich v. State, 858 So. 2d 1210 (Fla. 4th DCA 2003)
- Estevez v. State, 901 So. 2d 989 (Fla. 4th DCA 2005)
- Hardy v. State, 901 So. 2d 985 (Fla. 4th DCA 2005)