Bevan v. State, 2D02-5044.
| Decision Date | 08 July 2005 |
| Docket Number | No. 2D02-5044.,2D02-5044. |
| Citation | 908 So.2d 524 |
| Parties | Andrew BEVAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.
Andrew Bevan appeals his convictions for felony criminal mischief, two counts of assault, and one count of misdemeanor battery. We affirm his conviction for battery. We reverse his convictions for assault and criminal mischief because the trial court gave a jury instruction on self-defense that has been held to constitute fundamental error. See Estevez v. State, 901 So.2d 989 (Fla. 4th DCA 2005)
.
Mr. Bevan was charged with battery, aggravated assault, and criminal mischief as a result of an altercation in which he allegedly confronted two men installing a pool enclosure on a neighbor's property. Mr. Bevan allegedly chased and threatened the men with golf clubs, threw their tools into a pool, and severely damaged their truck by ramming it with his car and beating the windows out with a golf club. The trial was delayed because Mr. Bevan was found to be incompetent.
At trial, Mr. Bevan argued that the battery never occurred, and his sole defense to the aggravated assault and criminal mischief charges was self-defense. The trial court instructed the jury that the use of force would not be justified if it found that Mr. Bevan "was attempting to commit, committing, or escaping after the commission of Aggravated Assault or Criminal Mischief." The jury convicted Mr. Bevan of battery, criminal mischief, and the lesser offense of simple assault.
The jury instruction given was circular. If a jury obeyed the literal language of the instruction, then it was required to find that the very acts which Mr. Bevan sought to justify as self-defense could not be considered self-defense. See Rich v. State, 858 So.2d 1210 (Fla. 4th DCA 2003)
; Giles v. State, 831 So.2d 1263, 1266 (Fla. 4th DCA 2002). Thus, we must reverse Mr. Bevan's convictions for assault and criminal mischief and remand the case for a new trial. See Hardy v. State, 901 So.2d 985 (Fla. 4th DCA 2005); Rich, 858 So.2d at 1210-11. Because self-defense was not an issue as to the charge of battery, that conviction is not affected by this issue. We have considered Mr. Bevan's remaining issues and conclude that th...
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Martinez v. State
...with aggravated battery and his sole defense was self-defense); Hawk v. State, 902 So.2d 331 (Fla. 5th DCA 2005); Bevan v. State, 908 So.2d 524, 525 (Fla. 2d DCA 2005)("At trial, Mr. Bevan argued that the battery never occurred, and his sole defense to the aggravated assault and criminal mi......
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Martinez v. State
...been erroneously given only if it is the sole defensive position. See Grier v. State, 928 So.2d 368 (Fla. 3d DCA 2006); Bevan v. State, 908 So.2d 524 (Fla. 2d DCA 2005); Hardy v. State, 901 So.2d 985 (Fla. 4th DCA 2005); Estevez v. State, 901 So.2d 989 (Fla. 4th DCA 2005); Williams v. State......
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Sloss v. State
...beating their windows with a golf club. Nevertheless, giving the forcible felony instruction was fundamental error. See Bevan v. State, 908 So.2d 524 (Fla. 2d DCA 2005); see also Bates v. State, 883 So.2d 907, 907-08 (Fla. 2d DCA 2004) (holding that, despite defendant's unauthorized display......
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Barnes v. State
... ... The mere fact that the self-defense claim borders absurdity is irrelevant. See Gilchrist v. State, 938 So.2d 654, 656-57 (Fla. 4th DCA 2006); Bevan v. State, 908 So.2d 524, 525 (Fla. 2d ... 969 So.2d 1119 ... DCA 2005); Bates v. State, 883 So.2d 907, 907-08 (Fla. 2d DCA 2004) ... ...
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Avoiding fundamentally erroneous jury instructions: pointers for counsel in criminal trials and appeals.
...was fundamentally erroneous where defendant convicted of battering two pregnant women had claimed self-defense); Bevan v. State, 908 So. 2d 524, 525 (Fla. 2d D.C.A. 2005) (reversing conviction where defendant claimed self-defense; he confronted two men installing a pool enclosure on a neigh......