RICHARD ARTHUR BERTKE, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Richard Bertke petitioned for a writ of habeas corpus alleging his appellate counsel was ineffective. The court granted the petition because appellate counsel failed to challenge the trial court's erroneous inclusion of the forcible felony exception in the self-defense jury instruction when no independent forcible felony was charged.
The petitioner's appellate counsel was ineffective because counsel failed to raise the argument that the trial court erred in giving the forcible felony exception instruction. The court held that the instruction was erroneous because it is only applicable where the person claiming self-defense is engaged in another independent forcible felony, and the error was fundamental and could be considered even absent a trial objection.
[1] Giving a jury instruction on the forcible felony exception to self-defense is fundamental error when the defendant is charged with only one crime, even if the defendant a…
[2] The forcible felony instruction is generally applicable when a defendant is charged with at least two criminal acts, one for which self-defense is claimed and a separate…
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the instruction on the forcible felony exception is given when the accused is charged with at least two criminal acts, the act for which the accused is claiming self-defense, as well as a separate forcible felony. If a separate forcible felony is not involved, the giving of the instruction essentially negates the defense of self-defense.”
Establishes the applicable legal standard for when the forcible felony exception instruction may be properly given
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBertke was tried and convicted of aggravated battery with a firearm and sentenced to 25 years in prison. His conviction was affirmed on direct appeal.…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Forcible Felony Exception To Self-Defense cases and more on FLexlaw
MONACO, J.
Richard Arthur Bertke petitions this court for a writ of habeas corpus, asserting that his appellate counsel was ineffective. Because the petitioner’s appellate counsel failed to argue that the trial court erred in giving the forcible felony exception to the self-defense standard jury instruction in a ease where there was no independent forcible felony charged, we grant the petition.
Mr. Bertke was tried and convicted of aggravated battery with a firearm, and sentenced to state prison for a minimum mandatory period of twenty-five years. See § 775.087(2)(a)3., Fla. Stat. (2001). His conviction and sentence were affirmed per curiam. See Bertke v. State, 861 So. 2d 49 (Fla. 5th DCA 2003). Mr. Bertke later filed his petition for writ of habeas corpus arguing that his appellate counsel was ineffective for, among other reasons, failing to argue that the trial court committed fundamental error when it gave the standard jury instruction on self-defense, which included the forcible felony instruction. Habeas corpus is the proper method to raise a claim of ineffective assistance of appellate counsel. See Rutherford v. Moore, 774 So. 2d 637, 643 (Fla.2000); Ragan v. Dugger, 544 So. 2d 1052, 1054 (Fla. 1st DCA 1989).
The forcible felony exception instructs that the “use of force likely to cause death or great bodily harm is not justifiable if you find that [the defendant] was attempting to commit, committing, or escaping after the commission of, a forcible felony.” The exception is based on section 776.041(1), Florida Statutes (2001), and is only applicable where the person claiming self-defense is engaged in another independent forcible felony at the time. See Cleveland v. State, 887 So. 2d 362 (Fla. 5th DCA 2004); Velazquez v. State, 884 So. 2d 377 (Fla. 2d DCA), review denied, 890 So. 2d 1115 (Fla.2004); Giles v. State, 831 So. 2d 1263 (Fla. 4th DCA 2002).
As we discussed in Cleveland, the instruction on the forcible felony exception is given when the accused is charged with at least two criminal acts, the act for which the accused is claiming self-defense, as well as a separate forcible felony. If a separate forcible felony is not involved, the giving of the instruction essentially negates the defense of self-defense.
Here, Mr. Bertke was charged only with a single forcible felony, aggravated battery. Thus, the trial court erred in giving the instruction on the exception. We and other of our sister courts have held that this error is fundamental, and can be considered in the absence of an objection below. See Cleveland; Velazquez; Rich v. State, 858 So. 2d 1210 (Fla. 4th DCA 2003). We should relate in deference to the trial judge that there was no objection to the giving of the erroneous instruction. We note parenthetically that the Fourth District Court of Appeal had decided Giles before the initial brief was filed in Mr. Bertke’s plenary appeal. As the law at the time of the appeal applies when determining whether appellate counsel was ineffective, the petitioner’s appellate counsel was tasked with being aware of this opinion. See Domberg v. State, 661 So. 2d 285 (Fla.1995). Under the circumstances, therefore, and for the reasons articulated in Granberry v. State, 919 So. 2d 699 (Fla. 5th DCA 2006), the petition is well-founded.
We have considered the other grounds for relief urged.by Mr. Bertke, but find them to be without merit. Because there is a reasonable probability that the outcome of Mr. Bertke’s appeal would have been different had his appellate counsel raised this issue, however, we grant the petition. See State v. Riechmann, 777 So. 2d 342, 364 (Fla.2000). A copy of this opinion shall be filed with the trial court and treated as the notice of appeal.
PETITION GRANTED.
THOMPSON and PALMER, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Martinez v. State, 981 So. 2d 449 (Fla. 2008)…ror occur ...,” not "Does fundamental error occur ...” because the Florida Supreme Court has consistently held that the determination of whether fundamental error has occurred requires a full review of the record. 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. Stat…
-
Sipple v. State, 972 So. 2d 912 (Fla. 5th DCA 2007)…mpting to commit or committing a forcible felony. This court and others have previously held that presenting this instruction to the jury is erroneous if it is given in cases where the defendant is charged with only one offense. See Bertke v. State, 927 So. 2d 76 (Fla. 5th DCA 2006); 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, 363 (Fla. 5th DCA 2004); Velazquez v. State, 8…1 / 2
-
Blanton v. State, 956 So. 2d 480 (Fla. 5th DCA 2007)…ng the use of force. Giving the “forcible felony instruction” is inappropriate unless the defendant is charged with at least two acts: the act for which the accused is claiming self-defense as well as a separate forcible felony. See Bertke v. State, 927 So. 2d 76 (Fla. 5th DCA 2006); 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). As has been pointed out in all of the cited cases, unless a separate felony i…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rutherford v. Moore, 774 So. 2d 637 (Fla. 2000)
- State v. Dieter Riechmann, 777 So. 2d 342 (Fla. 2000)
- Lamonda D. Giles v. State, 831 So. 2d 1263 (Fla. 4th DCA 2002)
- Rich v. State, 858 So. 2d 1210 (Fla. 4th DCA 2003)
- Cleveland v. State, 887 So. 2d 362 (Fla. 5th DCA 2004)
- Velazquez v. State, 884 So. 2d 377 (Fla. 2d DCA 2004)
- Granberry v. State, 919 So. 2d 699 (Fla. 5th DCA 2006)
- Domberg v. State, 661 So. 2d 285 (Fla. 1995)
- Mullins v. State, 890 So. 2d 1115 (Fla. 2004)
- Ragan v. Dugger, 544 So. 2d 1052 (Fla. 1st DCA 1989)