KEVIN SLATTERY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that giving a forcible felony instruction when self-defense is the sole defense may constitute fundamental error, even if the objection was not specific.
[1] A jury instruction on the forcible felony exception to self-defense may constitute fundamental error when self-defense is the only defense asserted and evidence supports…
[2] Fundamental error can occur from an erroneous jury instruction on an affirmative defense, even if the defendant is charged with multiple acts and claims self-defense to e…
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Join FLexlaw to unlock all legal intelligenceKevin Slattery was convicted of aggravated battery and claimed self-defense. He objected to a jury instruction on the 'forcible felony' exception to s…
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ON AMENDED MOTION FOR REHEARING/MOTION TO CERTIFY QUESTION
THOMPSON, J.
This cause is before us on Appellee’s Motion for Rehearing and Motion to Certify Question. We deny the Motion for Rehearing but grant the Motion to Certify, and, accordingly, withdraw our former opinion of 1 December 2006, and substitute the following in lieu thereof.
Kevin Slattery was convicted of two counts of aggravated battery with a deadly weapon or causing great bodily harm for events arising from a single episode.1 He raises several issues on appeal. We find that only one has merit, and reverse.
Slattery claimed self-defense, but objected when the court instructed the jury on the “forcible felony” exception to his self-defense claim. We find his objection was not specific enough to apprise the court of the grounds for his objection. See Lane v. State, 861 So. 2d 451, 452-53 (Fla. 4th DCA 2003). Nevertheless, we conclude that fundamental error occurred. Where self-defense is the only defense asserted at trial, and evidence supports that defense, the giving of the forcible felony instruction may constitute fundamental error. Smith v. State, 933 So. 2d 1275, 1277 (Fla. 2d DCA 2006); Carter v. State, 889 So. 2d 937, 939 (Fla. 5th DCA 2004). The instruction has been deemed fundamentally erroneous even where the defendant is charged with two acts, but claims self-defense to each. See Jackson v. State, 935 So. 2d 107 (Fla. 4th DCA 2006); Ruiz v. State, 900 So. 2d 733, 733-34 (Fla. 4th DCA 2005). We conclude that fundamental error occurred in this case.
As we did in Zinnerman v. State, 942 So. 2d 932 (Fla. 5th DCA 2006), we certify the following question to the Florida Supreme Court as a matter of great public importance:
DOES FUNDAMENTAL ERROR OCCUR WHEN AN ERRONEOUS JURY INSTRUCTION RELATES ONLY TO AN AFFIRMATIVE DEFENSE AND NOT TO AN ESSENTIAL ELEMENT OF THE CRIME?
Accordingly, we REVERSE and REMAND for a new trial; QUESTION CERTIFIED.
PALMER and TORPY, JJ., concur. . § 784.045(1)(a), Fla. Stat. (2003).
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Citator
Cited By
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State v. Slattery, 999 So. 2d 1063 (Fla. 2009)…LEWIS, J. We have for review Slattery v. State, 995 So. 2d 515 (Fla. 5th DCA 2007), in which the Fifth District Court of Appeal certified a question of great public importance. We have jurisdiction. See art. V, § 8(b)(4), Fla. Const. We stayed proceedings in this case pending our disposition of Martinez v. St…
Authorities Cited
- Carter v. State, 889 So. 2d 937 (Fla. 5th DCA 2004)
- Samie Sims Smith v. State, 933 So. 2d 1275 (Fla. 2d DCA 2006)
- Gendry Ruiz v. State, 900 So. 2d 733 (Fla. 4th DCA 2005)
- Lane v. State, 861 So. 2d 451 (Fla. 4th DCA 2003)
- Yolinda Wright Zinnerman v. State, 942 So. 2d 932 (Fla. 5th DCA 2006)
- Benny J. Jackson v. State, 935 So. 2d 107 (Fla. 4th DCA 2006)