JOHN PAUL MOORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that giving an inaccurate and misleading jury instruction on justifiable use of deadly force was error that was not harmless.
John Paul Moore was convicted of aggravated battery with a deadly weapon. The trial court gave a jury instruction on justifiable use of deadly force t…
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FULMER, Chief Judge.
John Paul Moore challenges his conviction for aggravated battery with a deadly weapon. Because the trial court erred in giving an inaccurate and misleading instruction on the issue of justifiable use of deadly force, we reverse.
Moore contends that the trial court erred in instructing the jury that: “the use of force likely to cause death or great bodily harm is not justifiable if you find John Paul Moore was attempting to commit, committing, or escaping after the commission of aggravated battery as has been previously defined.” This instruction, which is based on section 776.041(1), Florida Statutes (2002), is applicable only under circumstances where a defendant claiming self-defense is engaged in another independent forcible felony at the time. See Giles v. State, 831 So. 2d 1263, 1265 (Fla. 4th DCA 2002). Here, the only charge against Moore was aggravated battery with a deadly weapon. The giving of the instruction, therefore, was error that was not harmless because it improperly negated Moore’s self-defense claim. See York v. State, 891 So. 2d 569 (Fla. 2d DCA 2004); Bates v. State, 883 So. 2d 907 (Fla. 2d DCA 2004); Velazquez v. State, 884 So. 2d 377 (Fla. 2d DCA), review denied, 890 So. 2d 1115 (Fla.2004); Hernandez v. State, 884 So. 2d 281 (Fla. 2d DCA 2004); Baker v. State, 877 So. 2d 856 (Fla. 2d DCA 2004); Zuniga v. State, 869 So. 2d 1239 (Fla. 2d DCA 2004).
The State argues that the issue raised in this appeal was not preserved. However, the record reflects that defense counsel objected to the instruction during the charge conference and appropriately argued that the instruction was not applicable. We do not read the record to show that the defense abandoned the objection after the court overruled it and, therefore, conclude that the issue was preserved.
We reverse and remand for a new trial, which obviates the need to address the remaining issues raised on appeal.
WHATLEY and CANADY, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Martinez v. State, 933 So. 2d 1155 (Fla. 3d DCA 2006)…jection, our sister courts have uniformly found that giving this instruction where defendant was only charged with one felony is reversible error; no harmless error has been found. Barnes v. State, 868 So. 2d 606 (Fla. 1st DCA 2004); Moore v. State, 912 So. 2d 1252 (Fla. 2d DCA 2005); Hernandez v. State, 884 So. 2d 281 (Fla. 2d DCA 2004); Federic v. State, 909 So. 2d 458 (Fla. 4th DCA 2005); Giles v. State, 831 So. 2d 1263 (Fla. 4th DCA 2002); Castillo v. State, 896 So. 2d 973 (Fla. 5th DCA 2005). . Grier v.…1 / 3
Authorities 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)
- Velazquez v. State, 884 So. 2d 377 (Fla. 2d DCA 2004)
- Baker v. State, 877 So. 2d 856 (Fla. 2d DCA 2004)
- Frederico Hernandez v. State, 884 So. 2d 281 (Fla. 2d DCA 2004)
- York v. State, 891 So. 2d 569 (Fla. 2d DCA 2004)
- Bates v. State, 883 So. 2d 907 (Fla. 2d DCA 2004)
- Mullins v. State, 890 So. 2d 1115 (Fla. 2004)