JOHN GLENN SWANSON, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2006-03-03
No. 2D04-5216
ALTENBERND and DAVIS, JJ., Concur.
921 So. 2d 852 Florida District Court of Appeal, Second District (2006) Positive Treatment
Cited by 6 cases

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Holding

The court held that giving a jury instruction on the forcible felony exception to self-defense was fundamental error when the defendant committed a single act and claimed self-defense.

Facts & Procedural History

John Swanson Jr. was convicted of aggravated battery with a deadly weapon and claimed self-defense. The trial court instructed the jury on the forcibl…

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Topics
Forcible Felony Exception To Self-Defense Aggravated Battery With A Deadly Weapon Deadly Weapon Aggravated Battery

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Opinion of the Court
KELLY, Judge.

KELLY, Judge.

John Swanson, Jr., appeals from his judgment and sentence for aggravated battery with a deadly weapon. We reverse because the jury instruction given on self-defense constituted fundamental error. Swanson committed the single act of aggravated battery and claimed self-defense. The trial court instructed the jury on the forcible felony exception to self-defense. The court told the jury that “the use of force likely to cause death or great bodily harm is not justifiable if you find that John Swanson was attempting to commit, committing, or after escaping the commission of aggravated battery.” This instruction, based on section 776.041(1), Florida Statutes (2003), “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, 363 (Fla. 5th DCA 2004).

Defense counsel did not object and, in fact, sought the erroneous instruction at trial. However, we are compelled to reverse because “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.” Velazquez v. State, 884 So. 2d 377, 377 (Fla. 2d DCA 2004); see also Zuniga v. State, 869 So. 2d 1239 (Fla. 2d DCA 2004); Baker v. State, 877 So. 2d 856 (Fla. 2d DCA 2004). Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

ALTENBERND and DAVIS, JJ., Concur.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Martinez v. State, 981 So. 2d 449 (Fla. 2008)
    …d. Id. . See, e.g., Bertke v. State, 927 So. 2d 76 (Fla. 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…
  • Martinez v. State, 933 So. 2d 1155 (Fla. 3d DCA 2006)
    …Hickson, and Estevez, self-defense was the defendant's sole defense. The only other case relied upon is Baker, where the issue was never ruled [*1167] upon because, despite being granted a belated appeal, Baker did not file one. . Swanson v. State, 921 So. 2d 852 (Fla. 2d DCA 2006); Humbert v. State, 922 So. 2d 997 (Fla. 2d DCA 2005); Granberry v. State, 919 So. 2d 699 (Fla. 5th DCA 2006); Houston v. State, 919 So. 2d 489 (Fla. 2d DCA 2005); Shepard v. Crosby, 916 So. 2d 861 (Fla. 4th DCA 2005); Newcomb v. S…
  • Sierra v. State, 941 So. 2d 566 (Fla. 2d DCA 2006)
    …CURIAM. Jose Sierra appeals his conviction and sentence for aggravated battery and argues that the trial court committed fundamental error in instructing the jury on his self-defense claim. The State properly concedes error. See Swanson v. State, 921 So. 2d 852 (Fla. 2d DCA 2006); Velazquez [*567] v. State, 884 So. 2d 377 (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). Accordingly, we reverse and remand for a new trial. Reversed…

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