DEVON STOUTE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Devon Stoute was convicted of attempted second-degree murder after shooting a victim. The Fourth District Court of Appeal reversed, finding that trial counsel was ineffective for failing to object to a jury instruction on the forcible felony exception to self-defense, which was inapplicable because Stoute was charged with only one crime rather than two separate criminal acts.
Trial counsel was ineffective because the forcible felony jury instruction was improper and erroneous, as it required a separate forcible felony charge which was not present. The instruction was prejudicial because it erroneously negated the defendant's only theory of defense—self-defense—requiring reversal and a new trial.
[1] A jury instruction on the forcible felony exception to self-defense is improper when the defendant is charged with only one criminal act and no separate forcible felony.
[2] Failure to object to an inapplicable forcible felony jury instruction can constitute ineffective assistance of counsel.
Previewing 2 of 4 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“a jury should be instructed on this statute only "where the accused is charged with at least two criminal acts, the act for which the accused is claiming self defense and a separate forcible felony."”
Establishes the legal requirement that the forcible felony instruction requires two separate criminal charges, not present in this case.
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Join FLexlaw to unlock all legal intelligenceStoute and the victim had a history of conflict including prior physical altercations on the day of the shooting. Stoute shot the victim three times f…
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KLEIN, J.
Appellant was convicted of attempted second degree murder and appeals the denial of his rule 3.850 motion for post-conviction relief following an evidentiary hearing. We reverse because of the failure of his counsel to object to the forcible felony jury instruction which was not applicable and deprived him of his theory of self defense.
During the months before this shooting there was a history of bad blood between appellant and the victim, including physical altercations, one occurring earlier on the day of the shooting. Later that day appellant, from the passenger seat of a car, fired three shots which struck the victim while the victim was working in his yard.
Appellant’s defense was that the victim had been threatening him with a gun because appellant had failed to repay a debt. According to appellant, he had come to the victim’s house to repay the money he owed, when the victim pulled out a gun, and appellant then shot the victim in self defense.
The forcible felony defense instruction is based on section 776.041(1), Florida Statutes (2000), which provides that the use of force in self defense is not available to a person who “is attempting to commit, committing, or escaping after the commission of, a forcible felony_” As we explained in Giles v. State, 831 So. 2d 1263, 1265 (Fla. 4th DCA 2002), a jury should be instructed on this statute only “where the accused is charged with at least two criminal acts, the act for which the accused is claiming self defense and a separate forcible felony.” In the present case appellant was charged with one crime, the shooting, and no other forcible felony.
The state persuaded the trial court that, because our opinion in Giles issued after appellant’s trial took place, trial counsel should not be held ineffective for failing to anticipate a change in the law. See Johnson v. State, 903 So. 2d 888 (Fla. 2005). It does not follow, however, that because Giles was decided after the trial in this case, it constituted a change in the law. The state’s argument would be correct if this statute had, for example, been previously construed by this court or the Florida Supreme Court to not require a separate forcible felony; however, that was not the case here. In fact, as is apparent from Giles, prior Florida Supreme Court decisions had indicated section 776.041(1) as requiring a separate forcible felony. Perkins v. State, 576 So. 2d 1310 (Fla.1991) (cocaine trafficking was not a forcible felony so as to preclude the defense of self-defense when a killing occurred during an attempt to traffic in cocaine); Marshall v. State, 604 So. 2d 799 (Fla.1992) (self-defense not available because defendant was engaged in the independent forcible felonies of burglary and aggravated battery when he killed the victim). We accordingly conclude that counsel’s performance was deficient.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) requires not only that counsel’s performance be deficient, but that the deficient performance prejudiced the defense. In this case appellant testified that the victim had pulled a gun when he shot the victim, and the victim denied that he had a gun. Although there were no other witnesses who could confirm that the victim did or did not have a gun, there was corroborating testimony that the victim had physically attacked the defendant in the past. Because the giving of the jury instruction erroneously negated defendant’s only theory of innocence, self defense, the prejudice prong of ineffective assistance of counsel has been satisfied.
Reversed for a new trial.
SHAHOOD, C.J. and DAMOORGIAN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Smith v. State, 76 So. 3d 379 (Fla. 1st DCA 2011)…ion of inapplicable “forcible felony” instruction in prosecution for aggravated battery constituted ineffective assistance, where the instruction negated the theory of self-defense); Bouie v. State, 27 So. 3d 88 (Fla. 1st DCA 2009); Stoute v. State, 987 So. 2d 748, 749-50 (Fla. 4th DCA 2008). Compounding the confusion, the court misread another portion of the standard instruction, telling the jury that if it was convinced that Appellant was justified in using non-deadly force, then it should find him guilty.…
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Santiago v. State, 88 So. 3d 1020 (Fla. 2d DCA 2012)…-defense.’” [*1023] Redding v. State, 41 So. 3d 353, 354-55 (Fla. 2d DCA 2010) (quoting Wilson v. State, 944 So. 2d 1244, 1245 (Fla. 2d DCA 2006)) (emphasis added); see also Zuniga v. State, 869 So. 2d 1239, 1240 (Fla. 2d DCA 2004); Stoute v. State, 987 So. 2d 748, 749 (Fla. 4th DCA 2008). Thus, when the defendant claims self-defense as to every offense with which he is charged, there is no separately charged “forcible felony” to trigger the application of the instruction. See Martinez, 981 So. 2d at 453-54 (…
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Sloss v. State, 45 So. 3d 66 (Fla. 5th DCA 2010)…elf-defense. This circular logic would most probably confuse jurors because the apparent result is that the instruction precludes a finding of self-defense and amounts to a directed verdict on the affirmative defense. Id. at 453. Stoute v. State, 987 So. 2d 748 (Fla. 4th DCA 2008) and Sipple v. State, 972 So. 2d 912 (Fla. 5th DCA 2007) are instructive in discussing the analysis of the “prejudice” prong in the context of a Rule 3.850 motion, where trial counsel failed to object to a forcible felony exceptio…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Perkins v. State, 576 So. 2d 1310 (Fla. 1991)
- Lamonda D. Giles v. State, 831 So. 2d 1263 (Fla. 4th DCA 2002)
- Marshall v. State, 604 So. 2d 799 (Fla. 1992)
- Johnson v. State, 903 So. 2d 888 (Fla. 2005)