Sloss v. State

• Decision Date: 24 March 2006
• Docket Number: No. 5D03-3120.,5D03-3120.
• Citation: 923 So.2d 572
• Parties: Bernard SLOSS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

923 So.2d 572

Bernard SLOSS, Appellant, v. STATE of Florida, Appellee.

No. 5D03-3120.

District Court of Appeal of Florida, Fifth District.

March 24, 2006.

Appeal from the Circuit Court for Volusia County, Julianne Piggotte, Judge.

James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Daytona Beach, for Appellant.

Bernard Sloss, Chipley, pro se.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.

ON MOTION FOR REHEARING EN BANC

PER CURIAM.

We grant the appellee's motion for rehearing en banc and certify a question of great public importance to the Florida Supreme Court. See Fla. R.App. Proc. 9.030.

This court reversed Sloss's conviction for aggravated battery with a deadly weapon and remanded for a new trial. Sloss v. State, 30 Fla. L. Weekly D 2328 (Fla. 5th DCA 2005). The State moved for rehearing en banc and to certify a question to the Florida Supreme Court. The State contends that the decision in Sloss is not in conformity with the Florida Supreme Court decisions in State v. Delva, 575 So.2d 643 (Fla.1991), Sochor v. State, 619 So.2d 285 (Fla.1993), and Battle v. State, 911 So.2d 85 (Fla.2005). We grant the motion for rehearing and certify the following question to the supreme court:

DOES FUNDAMENTAL ERROR OCCUR WHEN AN ERRONEOUS JURY INSTRUCTION RELATES ONLY TO AN AFFIRMATIVE DEFENSE AND NOT TO AN ESSENTIAL ELEMENT OF THE CRIME?

Sloss's jury instructions stated:

A person is justified in using force likely to cause death or great bodily harm if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the imminent commission of aggravated battery.

However, the use of force likely to cause death or great bodily harm is not justifiable if you find [Sloss] was attempting to commit, committing or escaping after the commission of aggravated battery, or [Sloss] initially provoked the use of force against himself unless the force asserted toward the defendant was so great that he reasonably believed that he was in imminent danger of death or great bodily harm, and had exhausted every reasonable means to escape the danger....

(Emphasis added).

This instruction was based on section 776.041(1), Florida Statutes (2003), which provided that the justification of self-defense or defense of others is not available to a person who "[i]s attempting to commit, committing, or escaping after the commission of, a forcible felony." The issue was whether giving an instruction on the forcible felony exception to self-defense constitutes fundamental error, where the defendant allegedly engaged in two forcible felonies, but is charged with a single crime. We held that the forcible felony instruction should be given only where the defendant claiming self-defense engaged in an independent forcible felony at the time.

REHEARING GRANTED; QUESTION CERTIFIED.

SHARP, W., THOMPSON and PALMER, JJ., concur.

GRIFFIN, J., concurs and concurs specially with opinion, in which SHARP, W., THOMPSON, PALMER and MONACO, JJ., concur.

ORFINGER, J., concurs, in part, and dissents, in part, with opinion in which PLEUS, C.J., SAWAYA, TORPY and LAWSON, JJ., concur.

GRIFFIN, J., concurring specially.

I agree with the original panel decision. I write only to explain why I believe that giving the instruction was fundamental error.

Judge Orfinger, in his partial dissent, acknowledges that this Court has already held that it constitutes fundamental error to give the instruction under the circumstances of this case. Hawk v. State, 902 So.2d 331, 333 (Fla. 5th DCA 2005); Cleveland v. State, 887 So.2d 362, 363 (Fla. 5th DCA 2004). However, he contends that these decisions are wrong because the instruction involves an affirmative defense (self-defense) and not an element of the offense. This distinction appears to be drawn from cases such as Sochor v. State, 619 So.2d 285, 290 (Fla.1993), in which the court had found that the complete failure to give an instruction on voluntary intoxication was not fundamental error because voluntary intoxication was a defense to, but not an essential element of the charged offense. The Sochor court reasoned that:

Fundamental error is error which goes to the foundation of the case. Sanford v. Rubin, 237 So.2d 134 (Fla.1970). Failure to give an instruction unnecessary to prove an essential element of the crime charged is not fundamental error. Voluntary intoxication is a defense to but not an essential element of, kidnapping. Therefore, the state did not have to disprove voluntary intoxication in order to convict Sochor of felony murder based on the underlying felony of kidnapping. Because the complained-of instruction went to Sochor's defense and not to an essential element of the crime charged, an objection was necessary to preserve this issue on appeal. Moreover, there was sufficient evidence of attempted sexual battery, a general-intent crime to which voluntary intoxication is not a defense, upon which to base a conviction of felony murder.

Id. at 290 (footnote omitted) (emphasis added).

The instruction that was given in this case does not involve a failure to instruct on Sloss' defense of self-defense.¹ The jury received that instruction. The problem is that the jury was given an additional (erroneous) instruction in avoidance of the affirmative defense. The self-defense instruction derives from Section 776.012, Florida Statutes, entitled "Use of Force in Defense of Person." Section 776.041, however, creates an avoidance of the defense: "The justification described in the preceding section of this chapter is not available to a person who: (1) is attempting to commit, committing, or escaping after the commission of a forcible felony...." The instruction given effectively relieved the State of proving what was essentially an element of its proof — that defendant did not act in self-defense. See generally State v. Rivera, 719 So.2d 335, 337 (Fla. 5th DCA 1998) ("If a defendant establishes a prima facie case of self-defense, the state must overcome the defense by rebuttal, or by inference in its case in chief."); Hernandez Ramos v. State, 496 So.2d 837, 838 (Fla. 2d DCA 1986) ("The state has the burden of proving guilt beyond a reasonable doubt, which includes proving beyond a reasonable doubt that the defendant did not act in self-defense."), citing Brown v. State, 454 So.2d 596, 598 (Fla. 5th DCA 1984).

Sloss was justified under Florida law in using non-deadly force in self defense "when and to the extent that [he] reasonably believe[d] that such conduct [was] necessary to defend himself ... against such other's imminent use of unlawful force." § 776.012, Fla. Stat. However, the erroneous instruction that was given informed the jury that Sloss was not justified in the use of non-deadly force if he was attempting to commit, committing, or escaping after the commission of aggravated battery. The instruction thus operated to relieve the State of its burden of proving beyond a reasonable doubt that the defendant did not act in self-defense.

Even if viewed as an erroneous instruction on a defense, the error is still fundamental. Sochor involved a failure to instruct the jury on a defense; it does not apply where an erroneous instruction has been given. See, e.g., Holiday v. State, 753 So.2d 1264 (Fla.2000) (finding Sochor inapplicable to situation in which erroneous instruction was given). The appropriate analysis where an erroneous instruction on a defense has been given is to ask whether the instruction was so flawed as to deprive the defendant of a fair trial. Holiday; Smith v. State, 521 So.2d 106 (Fla.1988). The errors in Holiday and Smith, cited by the dissent, involved an improper shifting of the burden of proof, not a total deprivation of a defense, so that the courts refused to find the instructions were fundamentally flawed.

Unlike Holiday and Smith, this case involves an instruction which operated to deprive the defendant of his only defense. Florida courts have frequently recognized that the giving of an erroneous instruction on a defense is fundamental error if the instruction effectively negates the defendant's only defense. See Thomas v. State, 831 So.2d 253, 253 (Fla. 3d DCA 2002) ("An incorrect jury instruction on the defense of justifiable use of deadly and nondeadly force constitutes fundamental error if there is a reasonable possibility that the instruction may have led to the conviction."); Lester v. State, 813 So.2d 106 (Fla. 3d DCA 2002) (instructing jury in prosecution for burglary of a conveyance and grand theft to use caution in relying on accomplice's testimony for defendant was fundamental error; instruction was applicable only when accomplice testified against defendant, and instruction negated defendant's only defense); Davis v. State, 804 So.2d 400, 404 (Fla. 4th DCA 2001) (error in jury instruction that negated defendant's entrapment defense in her cocaine trafficking and conspiracy to commit cocaine trafficking trial was fundamental, and thus reviewable, although defendant did not object to the instructions in open court, where error negated defendant's sole defense of entrapment); Carter v. State, 469 So.2d 194, 196 (Fla. 2nd DCA 1985) (instruction on self-defense which was incorrect and misleading and which had effect of negating defendant's only defense was fundamental error). By operating to deprive Sloss of his only defense, the instruction deprived Sloss of his right to a fair trial and was properly found to be fundamental error which requires reversal even in the absence of an objection. This analysis is also consistent with that of the Second and Fourth District Courts of Appeal, which have both previously held, as we have, that the error made in this case is fundamental. Velazquez v. State, 884 So.2d 377 (Fla. 2d DCA), review denied, 890 So.2d 1115 (Fla.2004); Dunnaway v. State, 883 So.2d 876 (...