GREGORY JOSEPH JOHNSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the standard forcible felony exception to the self-defense jury instruction was fundamentally erroneous and negated the defendant's viable claim of self-defense.
[1] A jury instruction on the forcible felony exception to self-defense is fundamentally erroneous if it negates a defendant's viable claim of self-defense.
[2] A conviction for possession of a firearm by a convicted felon may be reversed if the defendant's possession of the firearm occurred during permissible acts of self-defens…
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of second-degree murder and possession of a firearm by a convicted felon. The defendant contended he gained possession of …
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SCHWARTZ, Senior Judge.
As in Grier v. State, 928 So. 2d 368 (Fla. 3d DCA 2006), review denied, 952 So. 2d 1191 (Fla.2007), which involves an indistinguishable factual situation and the identical question of law, we reverse the defendant’s convictions for second degree murder and possession of a firearm by a convicted felon1 for a new trial on the ground that the then-standard forcible felony exception to self-defense instruction,2 which essentially negated Johnson’s viable claim of self-defense, was fundamentally erroneous. Accord, e.g., Wilson v. State, 944 So. 2d 1244 (Fla. 2d DCA 2006); Williams v. State, 937 So. 2d 771 (Fla. 1st DCA 2006); Fair v. State, 902 So. 2d 965 (Fla. 4th DCA 2005); Carter v. State, 889 So. 2d 937 (Fla. 5th DCA 2004), review denied, 903 So. 2d 190 (Fla.2005); cf. Blanton v. State, 956 So. 2d 480 (Fla. 5th DCA 2007) (certifying question); Slattery v. State, — So. 2d -, 2007 WL 186947 (Fla. 5th DCA Case no. 5D05-4408, opinion filed, January 26, 2007) [32 Fla. L. Weekly D305](same); Zinnerman v. State, 942 So. 2d 932 (Fla. 5th DCA 2006)(same).
Reversed and remanded.
. Our holding applies to this conviction because it was the defendant's contention that he gained possession of the firearm only during permissible acts of self-defense.
. That portion of the instruction provided: “However, the use of force likely to cause death or great bodily harm is not justifiable if you find: 1. [Gregory Joseph Johnson] was attempting to commit, [or] committing ... [a murder or aggravated battery].... ” After numerous reversals on this ground, the standard jury instruction has since been amended to instruct the trial court as follows: “Give only if the defendant is charged with more than one forcible felony. See Giles v. State, 831 So. 2d 1263 (Fla. 4th DCA 2002).” Fla. Std. Jury Instr. (Crim.) 3.6(f); see In re Standard Jury Instructions in Criminal Cases (2005-4), 930 So. 2d 612 (Fla.2006); see also In re Standard Jury Instructions in Criminal Cases (2006-3), 947 So. 2d 1159 (Fla.2007)(amending Florida Standard Jury Instruction (Criminal) 3.6(g)(Justifiable Use of Non-Deadly Force)).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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DE LA HOZ v. State, 997 So. 2d 1198 (Fla. 3d DCA 2008)…entire issue in the case was whether he acted in self-defense. There was no independent [*1201] forcible felony involved. Under the circumstances of this case, that part of the instruction negated the defendant’s sole defense. See Johnson v. State, 963 So. 2d 730, 731 (Fla. 3d DCA 2007); Grier v. State, 928 So. 2d 368, 370 (Fla. 3d DCA 2006). We conclude that giving the instruction was fundamental error. The defendant next contends that the trial court erred by denying his request for the then-existing “cas…
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Barnes v. State, 993 So. 2d 542 (Fla. 3d DCA 2008)…instructing the jury to reject Barnes’s self-defense claim if he was engaged in a forcible felony at the time he stabbed the victim. This error deprived Barnes of due process and a fair trial. See Grier, 928 So. 2d at 368; see also Johnson v. State, 963 So. 2d 730 (Fla. 3d DCA 2007) (forcible felony instruction negating defendant’s viable claim of self-defense was fundamentally erroneous). Accordingly, on this issue we reverse Barnes’s conviction and sentence and remand for a new trial. Reversed and remanded…
Authorities Cited (11 total)
- Lamonda D. Giles v. State, 831 So. 2d 1263 (Fla. 4th DCA 2002)
- Carter v. State, 889 So. 2d 937 (Fla. 5th DCA 2004)
- Grier v. State, 928 So. 2d 368 (Fla. 3d DCA 2006)
- Saintelien v. State, 952 So. 2d 1191 (Fla. 2007)
- In re Standard Jury Instructions IN Crim. Cases (NO. 2005-4), 930 So. 2d 612 (Fla. 2006)
- In re Standard Jury Instructions IN Crim. Cases (2006-3), 947 So. 2d 1159 (Fla. 2007)
- Yolinda Wright Zinnerman v. State, 942 So. 2d 932 (Fla. 5th DCA 2006)
- Jones v. Fla. Parole Comm'n, 944 So. 2d 1244 (Fla. 1st DCA 2006)
- Fair v. State, 902 So. 2d 965 (Fla. 4th DCA 2005)
- Williams v. State, 937 So. 2d 771 (Fla. 1st DCA 2006)