Howard v. State, 89-850
| Citation | 561 So.2d 1362 |
| Decision Date | 12 June 1990 |
| Docket Number | No. 89-850,89-850 |
| Parties | 15 Fla. L. Weekly D1587 Maurice HOWARD, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Leslie C. Elrod, Special Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Monique T. Befeler, Asst. Atty. Gen., for appellee.
Before HUBBART, NESBITT and GODERICH, JJ.
CONFESSION OF ERROR
As the State properly concedes, the trial court erred in not giving the jury an instruction on defense of property, upon request of the defendant, where ample evidence existed in the record to support the giving of this instruction.
The law is clear that a defendant is entitled to have the jury instructed on the law applicable to his theory of defense where there is any evidence introduced in support thereof. Bryant v. State, 412 So.2d 347 (Fla.1982); Palmes v. State, 397 So.2d 648 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981); Biscardi v. State, 511 So.2d 575 (Fla. 4th DCA 1987). Moreover, failure to give an instruction on a defense encompassed within the evidence is fundamental error, reviewable even in the absence of a specifically requested instruction or objection. Thomas v. State, 526 So.2d 183 (Fla. 3d DCA), review denied, 536 So.2d 245 (Fla.1988); Tobey v. State, 533 So.2d 1198 (Fla. 2d DCA 1988), review denied, 542 So.2d 990 (Fla.1989). Given our disposition on this point it is unnecessary to reach the defendant's remaining point on appeal.
Reversed and remanded for a new trial.
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...for a claim of right instruction or objection to its omission, constitutes fundamental error. Id. at 1058 (citing Howard v. State, 561 So.2d 1362, 1362 (Fla. 3d DCA 1990); Tobey v. State, 533 So.2d 1198, 1200 (Fla. 2d DCA 1988); Thomas v. State, 526 So.2d 183, 184 (Fla. 3d DCA 1988)). We ta......
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Muteei v. State
...and misleading. The defense attorney's efforts at clarification were unsuccessful.4 Although not relied on by Muteei, Howard v. State, 561 So.2d 1362 (Fla. 3d DCA 1990), reiterates the Thomas conclusion that failure to give an instruction on a defense encompassed within the evidence is fund......
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Chalmers v. State, 4D00-1831.
...of right instruction or object to its omission. Such an omission has been found to constitute fundamental error. Howard v. State, 561 So.2d 1362, 1362 (Fla. 3d DCA 1990); Tobey v. State, 533 So.2d 1198, 1200 (Fla. 2d DCA 1988); Thomas v. State, 526 So.2d 183, 184 (Fla. 3d DCA Chalmers conte......