Bridges v. State, No. 4D03-755.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: KLEIN, J.
• Citation: 878 So.2d 483
• Parties: Robert Lee BRIDGES, Appellant, v. STATE of Florida, Appellee.
• Decision Date: 04 August 2004
• Docket Number: No. 4D03-755.

878 So.2d 483

Robert Lee BRIDGES, Appellant,
v.
STATE of Florida, Appellee

No. 4D03-755.

District Court of Appeal of Florida, Fourth District.

August 4, 2004.

Elaine L. Thompson of the Law Office of Elaine L. Thompson, P.A., Lithia Springs, GA, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.

KLEIN, J.

Appellant was convicted of aggravated battery with a deadly weapon. He argues that the trial court should have instructed the jury that the state was required to prove the absence of his self-defense claim beyond a reasonable doubt. In addition, he contends that the court erred in not instructing the jury as to the justifiable use of non-deadly force. Neither issue was raised in the trial court, however, and we affirm.

It was undisputed that appellant struck the victim with a machete, knocking him unconscious. He received a cut which required twenty-two stitches to close. Appellant testified that he knew the victim owned a gun, that they had words on the morning of the incident, and that he struck the victim in self-defense, because he was afraid that the victim was going to shoot him. Other than the testimony of the defendant, there was no evidence that the victim had a gun or that the victim provoked the attack.

878 So.2d 484

The court instructed the jury that the justifiable use of force likely to cause death or great bodily harm was a defense to the charged crime. Appellant did not request, and the trial court did not give, an instruction on the justifiable use of non-deadly force. Such an instruction would have been necessary, if requested, because whether the force used by the defendant was deadly or non-deadly was a jury issue. Williams v. State, 727 So.2d 1062 (Fla. 4th DCA 1999). Unlike the failure to instruct on an essential element of a crime, however, the failure to instruct on a defense cannot be raised for the first time on appeal. Sochor v. State, 619 So.2d 285 (Fla.1993) (failure to give voluntary intoxication instruction not fundamental error); Holiday v. State, 753 So.2d 1264 (Fla.2000)

Appellant also argues that the trial court committed fundamental error in not instructing the jury that the state had the burden to prove beyond a reasonable doubt the absence of the defendant's claim that he acted in self-defense.

The court instructed that "the Defendant cannot justify the use of force likely to cause death or...