Mosansky v. State Of Fla., 1D09-3312.

Decision Date20 April 2010
Docket NumberNo. 1D09-3312.,1D09-3312.
Citation33 So.3d 756
PartiesGary MOSANSKY, Appellant,v.STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Nancy A. Daniels, Public Defender and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant seeks review of his first-degree murder conviction and resulting life sentence. Among the issues raised on appeal, Appellant argues that the trial court fundamentally erred by failing to specifically instruct the jury that the state had the burden to prove beyond a reasonable doubt that he did not act in self-defense. We reject this argument for the reasons that follow, and we affirm Appellant's remaining claims without discussion.

Without objection, the trial court gave the jury the following instructions pertinent to Appellant's claim of self-defense:

An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which [Appellant] is charged if the death of [the victim] resulted from the justifiable use of deadly force. Deadly force means force likely to cause death or great bodily harm.
A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent, one, imminent death or great bodily harm to himself or another, or, two, the imminent commission of aggravated battery against himself or another.

* * *

If in your consideration of the issue of self-defense, you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty. However, if from the evidence you are convinced that the defendant was not justified in the use of deadly force, you should find him guilty if all the elements of the charge have been proved.

Further, the court gave the following instruction on the burden of proof:

The defendant has entered a plea of not guilty. This means you must presume or believe the defendant is innocent. The presumption stays with the defendant, as to each material allegation in the information, through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt. To overcome the defendant's presumption of innocence, the State has the burden of proving the crime with which the defendant is charged was committed and the defendant is the person who committed the crime. The defendant is not required to present evidence or prove anything.

Appellant argues that the trial court's failure to specifically instruct the jury that the state had the burden to disprove his claim of self-defense was fundamental error because “self-defense is really in the nature of an element of the offense once the defendant presents some evidence to warrant the instruction,” and under Reed v. State, 837 So.2d 366 (Fla.2002), and State v. Delva, 575 So.2d 643 (Fla.1991), the failure to instruct the jury on a disputed element of the charged offense constitutes fundamental error. There is no merit to this argument.

The fundamental error doctrine applies “only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.” Martinez v. State, 981 So.2d 449, 455 (Fla.2008) (quoting Smith v. State, 521 So.2d 106, 108 (Fla.1988)) (emphasis omitted). The failure to give an instruction on an affirmative defense is not per se fundamental error. See id. (We have never held that the failure to give an instruction ... on an affirmative defense always constitutes fundamental error.”). Rather, [w]here the challenged jury instruction involves an affirmative defense, as opposed to an element of the crime, fundamental error only occurs where a jury instruction is ‘so flawed as to deprive defendants claiming the defense ... of a fair trial.’ Id. (quoting Smith ).

Appellant's reliance on Reed and Delva is misplaced because self-defense is not an element of first-degree murder, the offense at issue; rather, it is an affirmative defense that has the effect of legally excusing the defendant from an act that would otherwise be a criminal offense. See id. at 452-53 (quoting Hopson v. State, 127 Fla. 243, 168 So. 810, 811 (1936)); Cancel v. State, 985 So.2d 1127, 1131 n. 3 (Fla. 5th DCA 2008) (Griffin, J., specially concurring); but cf. Zuniga v. State, 869 So.2d 1239, 1240 (Fla. 2d DCA 2004) (“The self-defense instruction can be likened to an element of the offense for its importance to the defendant.”). The defendant has the burden of presenting sufficient evidence that he acted in self-defense in order to be entitled to a jury instruction on the issue. But the presentation of such evidence does not change the elements of the offense at issue; rather, it merely requires the state to present evidence that establishes beyond a reasonable doubt that the defendant did not act in self-defense.

The cases cited by Appellant in support of his argument on this issue stand simply for the proposition that in a criminal prosecution the burden of proving guilt beyond a reasonable doubt never shifts from the state and, as a result, when self-defense is properly at issue, the state effectively has the burden to prove that defendant was not acting in self-defense during the commission of the criminal act. See, e.g., Sipple v. State, 972 So.2d 912, 915-16 (Fla. 5th DCA 2007); Andrews v. State, 577 So.2d 650, 652-53 (Fla. 1st DCA 1991). Those cases do not, however, stand for the proposition that the trial court is required to specifically instruct the jury of the state's burden to disprove the claim of self-defense.

Not only did Appellant fail to cite any cases supporting his argument that such an instruction is required, he neglected to even acknowledge the cases in which the argument has been expressly rejected. In Bowen v. State, 655 So.2d 1208 (Fla. 4th DCA 1995), the appellant argued that the trial court erred in denying his request to instruct the jury that the state must prove beyond a reasonable doubt that the defendant did not act in self-defense. The court rejected this argument and held that the standard jury instruction given in that case-which was materially the same as the instruction read in this case-adequately informed the jury that the defendant must be acquitted if there was any reasonable doubt concerning the defendant's use of force against the victim. Id. at 1209.

More...

To continue reading

Request your trial
28 cases
  • Daniels v. Fla. Dep't of Corr., Case No. 4:13cv656-MW/CAS
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • 31 d3 Agosto d3 2016
    ...gave the jury instructions to determine whether Daniels had acted in self-defense. Ex. E at 440-44. See, e.g., Mosansky v. State, 33 So. 3d 756, 758 (Fla. 1st DCA 2010) ("The defendant has the burden of presenting sufficient evidence that he acted in self-defense in order to be entitled to ......
  • Drew v. Shouse
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • 16 d4 Agosto d4 2018
    ...While some Florida courts have characterized justifiable use of force as an affirmative defense, see, e.g., Mosansky v. State, 33 So. 3d 756, 758 (Fla. 1st DCA 2010), the statutory language itself indicates that it is something more than that.11 Indeed, Florida Statutes section 776.032(2) a......
  • Montgomery v. Sec'y, Dep't of Corr.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • 10 d5 Abril d5 2020
    ...in Elliott v. State, 49 So. 3d 269 (Fla. 1st DCA 2010) (per curiam), rev. denied, 69 So. 3d 277 (Fla. 2011) and Mosansky v. State, 33 So. 3d 756 (Fla. 1st DCA 2010) (per curiam), rev. denied, 46 So. 3d 48 (Fla. 2010), to the extent inconsistent with the law of the case. Ex. PP at 23-24. The......
  • Smith v. State , 1D10–3241.
    • United States
    • Court of Appeal of Florida (US)
    • 30 d5 Dezembro d5 2011
    ...that has the effect of legally excusing the defendant from an act that would otherwise be a criminal offense.” Mosansky v. State, 33 So.3d 756, 758 (Fla. 1st DCA 2010). In asserting self-defense, Appellant acknowledged doing the act charged but sought to justify it as necessary to protect h......
  • Request a trial to view additional results
1 books & journal articles
  • Pretrial motions and defenses
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 1
    • 30 d5 Abril d5 2021
    ...burden of proof properly instruct the jury regarding what the state must prove to disprove a self-defense defense. Mosansky v. State, 33 So. 3d 756 (Fla. 1st DCA 2010) Evidence that the victim had a high blood alcohol level is relevant to the defendant’s defense in a onepunch manslaughter c......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT