Dunnaway v. State, 4D03-108.
Decision Date | 22 September 2004 |
Docket Number | No. 4D03-108.,4D03-108. |
Citation | 883 So.2d 876 |
Parties | Lorenzo DUNNAWAY, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
Appellant, Lorenzo Dunnaway, was originally charged with second degree murder and was found guilty as charged. The court thereafter granted appellant's motion for new trial, which was affirmed on appeal. See State v. Dunnaway, 778 So.2d 378 (Fla. 4th DCA 2001). Thereafter, the state filed an amended information, charging appellant again with second degree murder. Appellant's defense to the charge was that he acted in self defense.
A jury trial was held and appellant was found guilty of the lesser included offense of aggravated battery. He now appeals the second conviction and sentence, raising two issues on appeal. As his first issue, appellant argues that fundamental error occurred when the trial court instructed the jury upon the justifiable use of both deadly and non-deadly force in such a manner so as to negate his defense. We agree with appellant's position, and reverse and remand for a new trial.
In this case, the trial court, without objection from appellant, gave the following instruction to the jury with regard to justifiable use of deadly force:
The court also gave a similar instruction on the charge of justifiable use of force not likely to cause death or great bodily harm, as follows:
Appellant argues that the instructions were misleading and confusing, negated his defense of self-defense, and warrant reversal even though he did not object. We agree.
In Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002), this court held that the same language used by the trial court in this case was misleading and confusing in an aggravated battery trial where the defendant's defense was self defense. The language at issue is based on section 776.041(1), Florida Statutes, which states that use of force by an aggressor is not justified if the person is "attempting to commit, committing, or escaping after the commission of, a forcible felony." Id. at 1265. In Giles, we held that this section is applicable only in situations in which the person claiming self defense is, at that time, committing...
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