RICHARD WOODSMALL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 2015-04-10
No. 5D12-4155
PALMER, J., concurs., EVANDER, J., concurs in result only.
164 So. 3d 696 Florida District Court of Appeal, Fifth District (2015) Positive Treatment
Cited by 3 cases

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Holding

The trial court erred in giving a forcible-felony exception jury instruction for justifiable use of deadly force on the aggravated battery charge when there was no independent forcible felony charged.


Headnotes

[1] A forcible-felony exception jury instruction is improper when there is no forcible felony independent of the felony for which the defendant claims self-defense.

[2] An erroneous jury instruction on the forcible-felony exception is not harmless when the instruction negates the defendant's self-defense claim as to the charged offense.

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Facts & Procedural History

Richard Woodsmall was convicted of first-degree premeditated murder and aggravated battery. His sole defense on both charges was self-defense. The tri…

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Opinion of the Court
BERGER, J.

BERGER, J.

Richard Woodsmall appeals the judgment and sentences entered against him after a jury found him guilty as charged of first-degree premeditated murder and aggravated battery causing great bodily harm with a weapon. He raises four issues on appeal, one of which merits discussion, namely, whether the trial court erred in overruling defense counsel’s objection to the trial court giving a forcible-felony exception jury instruction as to Woodsmall’s justifiable use of deadly force self-defense claim on the aggravated battery charged in count two.1 Because the trial court erred in giving the instruction, we reverse the judgment and sentence as it relates to count two and remand for a new trial. In all other respects, we affirm.2

*698A complete recitation of the facts leading up to Woodsmall’s arrest and conviction for first-degree murder and aggravated battery is unnecessary. What is relevant is that Woodsmall’s sole defense on each charge was that he acted in self-defense.

It is well-settled that for the forcible-felony exception instruction to apply, there must be an independent forcible felony charged other than the one the defendant claims he committed in self-defense. See Martinez v. State, 981 So.2d 449, 454 (Fla.2008) (“In light of the foregoing, we hold that the lower courts have properly concluded that for the forcible-felony instruction to apply, there must be an independent forcible felony other than the one which the defendant claims he or she committed in self-defense.”); Crimins v. State, 113 So.3d 945, 948 (Fla. 5th DCA 2013) (“The forcible felony exception instruction, providing that a claim of self-defense is not available to a defendant who is attempting to commit, committing, or escaping after the commission of a forcible felony, does not apply where there is no forcible felony independent of the felony(s) for which the defendant is claiming self-defense.”); Santiago v. State, 88 So.3d 1020, 1023 (Fla. 2d DCA 2012) (“Thus, when the defendant claims self-defense as to every offense with which he is charged, there is no separately charged ‘forcible felony1 to trigger the application of the instruction.”); see also Gregory v. State, 141 So.3d 651, 654-55 (Fla. 4th DCA 2014) (“When a defendant charged with multiple crimes claims self-defense as to each offense, the forcible-felony instruction is improper because there is no independent forcible felony available and the instruction negates the defendant’s self-defense claim.”). No such independent forcible felony was charged against Woodsmall in this case to trigger application of the instruction. Accordingly, the trial court erred in giving the instruction on the aggravated battery charged in count two.

We also find the error was not harmless. At a minimum, because the jury was instructed that the very act that Woodsmall sought to justify with respect to count two, i.e., aggravated battery against Anders, itself precluded a finding of justification, we cannot say beyond a reasonable doubt that the error in giving the forcible-felony exception instruction did not affect the verdict. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986) (“The focus [of a harmless error analysis] is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.”).

We therefore reverse Woodsmall’s judgment and sentence for aggravated battery and remand for a new trial on that count.

*699AFFIRMED, in part, REVERSED, in part, and REMANDED FOR NEW TRIAL.

PALMER, J., concurs.

EVANDER, J., concurs in result only.


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