KENNETH FLYNN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a jury instruction on the forcible felony exception to aggravated battery constituted fundamental error when self-defense was a viable defense.
[1] Giving a jury instruction on the forcible felony exception to aggravated battery constitutes fundamental error when only one charged forcible felony is involved and the d…
[2] A defendant is entitled to a jury instruction on self-defense when there is sufficient evidence presented to support the theory that the victim was the aggressor.
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Join FLexlaw to unlock all legal intelligenceKenneth Flynn was charged with aggravated battery after allegedly striking a victim with a pool stick. The trial court gave a standard jury instructio…
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STRINGER, Judge.
Kenneth Flynn seeks review of his judgment and sentence for aggravated battery with great bodily harm. Flynn argues that the trial court erred in denying his motion for judgment of acquittal and that the trial court committed fundamental error in instructing the jury on self-defense.
We conclude without further discussion that the State presented sufficient evidence of the crime.
However, we reverse because the jury instruction constituted fundamental error. Flynn was charged with aggravated battery with great bodily harm with a deadly weapon for allegedly striking the victim in the face with a pool stick during a barroom brawl in Hillsborough County. At the trial, the court gave the standard jury instruction on aggravated battery, which contains the forcible felony exception that this court has since held constitutes fundamental error when there is only one charged forcible felony. 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).
The State recognizes this line of cases but argues that there are two reasons that giving the forcible felony exception instruction did not constitute fundamental error in this case.
First, the State argues that giving the forcible felony exception instruction did not constitute fundamental error because self-defense was not the primary defense argued at trial.
The State argues that Flynn’s primary defense was that another person inflicted the serious injuries to the victim’s face with a beer mug. In support of its argument on this issue, the State relies on the Third District’s decision in Martinez v. State, 933 So. 2d 1155 (Fla. 3d DCA 2006), in which the court concluded that giving the forcible felony exception instruction did not constitute fundamental error. In so doing, the Third District engaged in a lengthy and somewhat novel discussion regarding the application of fundamental error analysis to the forcible felony exception instruction that this court has not expressly adopted.
This is not the first time this argument has been made to this court. See Smith v. State, 933 So. 2d 1275 (Fla. 2d DCA 2006). As we did in Smith, we decline to decide whether we agree with the fundamental error analysis employed in Martinez because that case is distinguishable. In Martinez, not only was self-defense not the defendant’s primary defense, the defendant’s primary defense was inconsistent with his defense of self-defense. 933 So. 2d at 1167.
Furthermore, the evidence presented regarding the victim’s injuries in Martinez was also inconsistent with a theory of self-defense. In this case, Flynn’s primary defense was not inconsistent with self-defense and neither was the evidence regarding the victim’s injuries.
Finally, the jury in Martinez had also found that the defendant had a premeditated intent to kill, which completely negated the defense of self-defense. Id. at 1175.
Thus, even if this court were to utilize the fundamental error analysis employed in Martinez, we do not believe it would compel affirmance.
Second, the State argues that giving the forcible felony exception instruction did not constitute fundamental error because no reasonable jury would have determined that Flynn acted in self-defense. In support of its argument on this issue, the State relies on Sutton v. State, 929 So. 2d 1105 (Fla. 4th DCA), receded from on other grounds, Yisrael v. State, 938 So. 2d 546 (Fla. 4th DCA 2006); and Thomas v. State, 918 So. 2d 327 (Fla. 1st DCA 2005). In each of these cases, the courts decided that giving the forcible felony exception instruction did not constitute fundamental error because the defendant was not entitled to the instruction on self-defense as a matter of law. In so doing, the courts engaged in a fundamental error analysis that this court has not expressly adopted.
Again, this is not the first time this argument has been made to this court. See Ortiz v. State, 942 So. 2d 1013 (Fla. 2d DCA 2006). As we did in Ortiz, we decline to decide whether to agree with the fundamental error analyses employed by the Sutton and Thomas courts. Flynn presented sufficient evidence to support a jury instruction on self-defense in the form of testimony that the victim was the aggressor. Thus, even if this court were to utilize the fundamental error analyses employed in Sutton and Thomas, these cases would not compel affirmance.
Reversed and remanded for a new trial.
DAVIS and WALLACE, JJ., Concur.
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Citator
Cited By
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Martinez v. State, 981 So. 2d 449 (Fla. 2008)…d) (quoting Stewart v. State, 420 So. 2d 862, 863 (Fla.1982)). With regard to this reasoning, there is no difference between a situation in which self-defense is the sole defense and a situation where other defenses are presented. Cf Flynn v. State, 947 So. 2d 1229, 1229-30 (Fla. 2d DCA 2007) (holding that to give the forcible-felony instruction constituted fundamental error where defendant raised two defenses — self-defense, and that someone else inflicted the injuries to the victim; distinguishing Martinez).…
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Granberry v. State, 967 So. 2d 1044 (Fla. 5th DCA 2007)…one charged. An independent forcible felony is generally defined as one that invokes the use or threat of physical force or violence against an individual. See Barnes v. State, — So. 2d -, 2007 WL 2316841 (Fla. 3d DCA Aug.15, 2007); Flynn v. State, 947 So. 2d 1229 (Fla. 2d DCA 2007); Williams v. State, 937 So. 2d 771 (Fla. 1st DCA 2006); Barnes v. State, 932 So. 2d 589 (Fla. 5th DCA 2006); Craven v. State, 908 So. 2d 523 (Fla. 4th DCA 2005); Hawk v. State, 902 So. 2d 331 (Fla. 5th DCA 2005); Cleveland v. Stat…
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Barnes v. State, 969 So. 2d 1117 (Fla. 5th DCA 2007)…006), rev. granted, 956 So. 2d 458 (Fla.2007); Thomas v. State, 918 So. 2d 327, 330 (Fla. 1st DCA 2005); Hickson v. State, 917 So. 2d 939, 940-41 (Fla. 4th DCA 2005); Berrios v. State, 781 So. 2d 455, 457 (Fla. 4th DCA 2001); but see Flynn v. State, 947 So. 2d 1229, 1230 (Fla. 2d DCA 2007) (declining to answer whether court agreed with Sutton and Thomas analyses); Ortiz v. State, 942 So. 2d 1013, 1015 (Fla. 2d DCA 2006) (same). Therefore, the State argues, if Barnes was not entitled to an instruction on self-d…
Authorities Cited
- Mitchell v. State, 938 So. 2d 546 (Fla. 4th DCA 2006)
- Zuniga v. State, 869 So. 2d 1239 (Fla. 2d DCA 2004)
- Intcomex Holdings, LLC v. Grant Thornton Int'l, 933 So. 2d 1155 (Fla. 3d DCA 2006)
- York v. State, 932 So. 2d 413 (Fla. 2d DCA 2006)
- Samie Sims Smith v. State, 933 So. 2d 1275 (Fla. 2d DCA 2006)
- Rancourt v. State, 918 So. 2d 327 (Fla. 1st DCA 2005)
- Kwamin Hassan Thomas v. State, 918 So. 2d 327 (Fla. 1st DCA 2005)
- Houston v. State, 919 So. 2d 489 (Fla. 2d DCA 2005)
- Vondyleyn M. Sutton v. State, 929 So. 2d 1105 (Fla. 4th DCA 2006)
- Ortiz v. State, 942 So. 2d 1013 (Fla. 2d DCA 2006)