JOHN SWEARINGDEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 2014-12-16
No. 1D14-146
CLARK, WETHERELL, and RAY, JJ., concur.
213 So. 3d 370 Florida District Court of Appeal, First District (2014) Positive Treatment
Cited by 3 cases

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Holding

The court held that the jury instructions on self-defense, specifically regarding the duty to retreat when there is a dispute about the initial aggressor, were fundamentally erroneous and contradictory.


Headnotes

[1] A jury instruction that simultaneously instructs a defendant has no duty to retreat and that the defendant's use of deadly force is unjustifiable if the defendant was the…

[2] When there is a dispute as to who was the initial aggressor in a self-defense claim, jury instructions that present conflicting rules regarding the duty to retreat can co…

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Facts & Procedural History

Appellant was convicted of second-degree murder and claimed self-defense. The trial court provided jury instructions on self-defense that contained co…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant was convicted of second-degree murder and sentenced to life in prison for stabbing a man in the head with a knife during an alcohol-fueled argument over a woman. Appellant claimed that he stabbed the victim in self-defense. There was conflicting evidence as to whether the victim or Appellant was the initial aggressor. The trial court instructed the jury that:

If the defendant was not engaged in an unlawful activity and was attacked in a place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably believed that it ivas necessary to do so to prevent death or great bodily harm to himself
⅜ ⅜ ⅜
However, use of deadly force is not justifiable if you find the defendant initially provoked the use of force against himself unless, one, force asserted toward the defendant was so great that he reasonably believed that he was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger of [sic] 1 using deadly force on [the victim] or, number two, in good faith, the defendant withdrew from physical contact with [the victim] and clearly indicated to [the victim] that he wanted to withdraw *371and stop the use of deadly force but [the victim] continued or resumed the use of force.

(emphasis added).

Appellant contends that the trial court committed fundamental error2 in giving these instructions because the portions of the instructions emphasized above negate each other with respect to his duty to retreat or not. We are compelled to agree based on Floyd v. State, 151 So.3d 452 (Fla. 1st DCA 2014), rev. granted 2014 WL 7251662 (Fla. Dec. 16, 2014), and Ross v. State, 157 So.3d 406 (Fla. 1st DCA 2015). But see Sims v. State, 140 So.3d 1000, 1003 n. 3 (Fla. 1st DCA 2014) (stating in dicta that where there is a dispute as to who was the initial aggressor, no error results from instructing the jury that the defendant both did (if he was the initial aggressor) and did not (if the victim was the initial aggressor) have a duty to retreat). Accordingly, we reverse Appellant’s judgment and sentence and remand for a new trial.3

Additionally, we certify that this case passes on the same question of great public importance that we certified to the Florida Supreme Court in Floyd:

DOES FLORIDA STANDARD JURY INSTRUCTION (CRIMINAL) 3.6(F) PROVIDE CONFLICTING INSTRUCTIONS AS TO THE DUTY TO RETREAT?

Floyd v. State, Case No. 1D11-4465 (Oct, 17, 2014) (order granting Appellee’s motion to certify a question of great public importance). More specifically, the question of great public importance framed by this case is:

IN A CASE WHERE THE DEFENDANT’S SOLE DEFENSE IS SELF-DEFENSE AND THERE IS A DISPUTE AS TO WHETHER THE DEFENDANT OR THE VICTIM WAS THE INITIAL AGGRESSOR, DOES A TRIAL COURT COMMIT FUNDAMENTAL ERROR BY INSTRUCTING THE JURY BOTH (1) THAT THE DEFENDANT DID NOT HAVE A DUTY TO RETREAT AND THAT HE COULD MEET FORCE WITH DEADLY FORCE IF HE REASONABLY BELIEVED THAT IT WAS NECESSARY TO DO SO TO PREVENT DEATH OR GREAT BODILY HARM TO HIMSELF, AND (2) THAT THE DEFENDANT’S USE OF DEADLY FORCE WAS NOT JUSTIFIABLE IF HE WAS THE INITIAL AGGRESSOR UNLESS HE EXHAUSTED EVERY REASONABLE MEANS TO ESCAPE THE DANGER OTHER THAN USING DEADLY FORCE?

REVERSED and REMANDED for a new trial; QUESTION CERTIFIED.

CLARK, WETHERELL, and RAY, JJ., concur.


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Citator

Cited By

  • Knight v. State, 267 So. 3d 38 (Fla. 1st DCA 2016)
    …e context of jury instruction, a "record ... [that] reflects nothing more than unknowing acquiescence" is insufficient to show waiver of fundamental error. Williams v. State , 145 So. 3d 997, 1003 (Fla. 1st DCA 2014). See also Swearingden v. State , 213 So. 3d 370 (Fla. 1st DCA 2015) ("because the record does not reflect that he specifically requested or affirmatively agreed to the challenged portions of the instructions, he did not waive the issue for appeal"); Burns v. State , 170 So. 3d 90, 94 n.3 (Fla. 1s…
  • Knight v. State, 41 Fla. L. Weekly Fed. D 1760 (Fla. 1st DCA 2018)

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