In Rich v. State, 858 So.2d 1210 (Fla. 4th DCA 2003), decided eight days before Granberry's motion for rehearing was denied, the court held in a direct appeal that giving the instruction where there was no other independent forcible felony was fundamental error.Summary of this case from Granberry v. State
Case No. 4D02-3588.
Opinion filed November 12, 2003.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Ilona M. Holmes, Judge; L.T. Case No. 01-17721 CF10A.
Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
We reverse appellant's conviction for aggravated battery because the trial court negated appellant's self-defense claim by instructing the jury that the use of force was not justified if appellant was committing or attempting to commit aggravated battery. In Giles v. State, 831 So.2d 1263, 1265 (Fla. 4th DCA 2002), we held that this instruction, which is based upon section 776.041, Florida Statutes (2002), was applicable only in circumstances where the person claiming self-defense is engaged in another independent forcible felony at the time. Giving this instruction where the only charge against the defendant is the aggravated battery, which also was the act that the defendant claimed was self-defense, would improperly negate the self-defense claim. See id. at 1266.
Although appellant did not object to this instruction, we hold that it is fundamental error. "An incorrect jury instruction on the defense of justifiable use of deadly and non-deadly force constitutes fundamental error if there is a reasonable possibility that the instruction may have led to the conviction." Thomas v. State, 831 So.2d 253, 253 (Fla. 3d DCA 2002) (citations omitted). We determined in Giles that this instruction was misleading, and it was reasonably possible that it contributed to Giles' conviction under circumstances similar to this case. 831 So.2d at 1266. In addition, we have held that fundamental error results where an inaccurate and misleading instruction negates a defendant's only defense. See Davis v. State, 804 So.2d 400, 404 (Fla. 4th DCA 2001).
Reversed and remanded.
GUNTHER, WARNER and MAY, JJ., concur.
NOT FINAL UNTIL DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.