MICHAEL GRIMSLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Grimsley appealed his aggravated battery conviction, raising four issues including whether the trial court abused its discretion by refusing to give jury instructions on both justifiable use of deadly and nondeadly force. The court affirmed the judgment and sentence, finding that while Grimsley was entitled to both instructions as a matter of law, he failed to preserve the issue by abandoning his request at trial.
Grimsley was entitled to instructions on both types of force because the evidence did not establish that the force used was deadly or nondeadly as a matter of law. However, Grimsley failed to preserve this issue for appeal because counsel abandoned the request by choosing the nondeadly force instruction without further objection, so reversal was not warranted.
[1] A defendant is entitled to jury instructions on both justifiable use of deadly force and justifiable use of nondeadly force when the evidence does not establish as a matt…
[2] A defendant abandons a request for jury instructions by choosing one instruction over another without further objection.
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Join FLexlaw to unlock all legal intelligence“If the evidence does not establish that the force used by the defendant was deadly or nondeadly as a matter of law, then the jury should decide the question and the defendant is entitled to instructions on both justifiable use of deadly force and justifiable use of nondeadly force.”
Establishes the legal standard for when both self-defense instructions must be given
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Join FLexlaw to unlock all legal intelligenceGrimsley was charged with aggravated battery for attacking a victim and causing great bodily harm including a sinus bone fracture, orbital fracture, a…
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STRINGER, Judge.
Michael Grimsley raises four issues on review of his judgment and sentence for aggravated battery. We affirm Grimsley’s judgment and sentence but write to discuss one of the issues raised on appeal and an issue that was not raised on appeal.
Grimsley was charged with aggravated battery with great bodily harm or permanent disability or permanent disfigurement. The State’s theory at trial was that Grimsley attacked the victim, causing great bodily harm to him by inflicting a sinus bone fracture, an orbital fracture, and a hematoma. Grimsley’s defense at trial was self-defense.
During the jury charge conference, Grimsley requested instructions on both justifiable use of deadly force and justifiable use of nondeadly force. The court refused to give both instructions, and Grimsley asked for some time to decide which instruction to choose. After a recess, Grimsley chose the instruction on justifiable use of nondeadly force without further objection. On appeal, Grimsley argues that the trial court abused its discretion in denying his request for both instructions.
If the evidence does not establish that the force used by the defendant was deadly or nondeadly as a matter of law, then the jury should decide the question and the defendant is entitled to instructions on both justifiable use of deadly force and justifiable use of nondeadly force. Caruthers v. State, 721 So. 2d 371, 371-72 (Fla. 2d DCA 1998); Mathews v. State, 799 So. 2d 265, 266 (Fla. 1st DCA 2001); Williams v. State, 727 So. 2d 1062, 1062 (Fla. 4th DCA 1999). The evidence in this case does not establish that the force used by Grimsley was deadly or nondeadly as a matter of law. Accordingly, Grimsley was entitled to both instructions.
However, we conclude that Grims-ley did not preserve this issue for review because counsel abandoned his request for both instructions by choosing the instruction on justifiable use of nondeadly force without further objection. Thus, Grimsley is not entitled to reversal on this basis.
There is an error in the jury instructions that would require a new trial regardless of Grimsley’s failure to object below; however, this error was not raised on appeal. Our review of the record revealed that the trial court erroneously gave the standard jury instruction regarding the forcible felony exception to self-defense. See York v. State, 932 So. 2d 413, 415-16 (Fla. 2d DCA 2006); Houston v. State, 919 So. 2d 489, 490 (Fla. 2d DCA 2005); Zuniga v. State, 869 So. 2d 1239, 1240 (Fla. 2d DCA 2004). Although this court has determined that the giving of this instruction constitutes fundamental error under similar circumstances, see id., we are precluded from reviewing the issue because it was not raised on appeal. Our affirmance is therefore without prejudice to any right Grimsley might have to file a motion for appropriate postconviction relief.
Affirmed.
CANADY and LaROSE, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Michel v. State, 989 So. 2d 679 (Fla. 4th DCA 2008)…e to be decided by the jury, and the defendant is entitled to jury instructions on the justifiable use of both types of force. Mathis v. State, 973 So. 2d 1153 (Fla. 1st DCA 2006), rev. denied, 954 So. 2d 1156 (Fla.2007); see also Grimsley v. State, 939 So. 2d 123 (Fla. 2d DCA 2006). A deadly weapon, such as a knife, can be used without deadly force. DeLuge v. State, 710 So. 2d 83, 84 (Fla. 5th DCA 1998) (citing Howard v. State, 698 So. 2d 923 (Fla. 4th DCA 1997)). Here, the parties dispute the details of th…
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Grimsley v. State, 967 So. 2d 1132 (Fla. 2d DCA 2007)…te counsel rendered ineffective assistance when she neglected to raise this issue. Accordingly, we grant the petition, reverse Grimsley’s conviction, vacate the sentence imposed thereon, and remand for a new trial. This court, in Grimsley v. State, 939 So. 2d 123 (Fla. 2d DCA 2006), affirmed Grimsley’s aggravated battery conviction and ensuing sentence. In so doing, we stated: Our review of the record revealed that the trial court erroneously gave the standard jury instruction regarding the forcible felony…
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Mordenti v. State, 982 So. 2d 710 (Fla. 2d DCA 2008)…n in a crowded courtroom where he could have been overheard. However, this' issue was not raised by Mordenti on appeal, and we are precluded from addressing it for that reason. See Johnson v. State, 660 So. 2d 637, 645 (Fla.1995); Grimsley v. State, 939 So. 2d 123, 125 (Fla. 2d DCA 2006). Furthermore, there is no evidence that the statement was heard by anyone other than attorney Trevena. My determination that Mordenti has not established any error in excluding the statements at issue as privileged renders m…
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
- Zuniga v. State, 869 So. 2d 1239 (Fla. 2d DCA 2004)
- York v. State, 932 So. 2d 413 (Fla. 2d DCA 2006)
- Williams v. State, 727 So. 2d 1062 (Fla. 4th DCA 1999)
- Mathews v. State, 799 So. 2d 265 (Fla. 1st DCA 2001)
- Caruthers v. State, 721 So. 2d 371 (Fla. 2d DCA 1998)
- Houston v. State, 919 So. 2d 489 (Fla. 2d DCA 2005)