SLOSS v. State of Fla.

Decision Date10 September 2010
Docket NumberNo. 5D10-1813.,5D10-1813.
Citation45 So.3d 66
PartiesBernard SLOSS, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

OPINION TEXT STARTS HERE

Bernard Sloss, Daytona Beach, pro se.

Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

EVANDER, J.

Sloss appeals from the summary denial of his post-conviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he alleged that his trial counsel was ineffective by failing to object to the trial court giving the forcible felony exception instruction when he was only charged with a single offense-aggravated battery. The trial court concluded that Sloss suffered no prejudice. We reverse.

This is Sloss' third appearance before this court. On Sloss' direct appeal, this court held that the erroneous giving of the forcible felony exception instruction constituted fundamental error. Sloss v. State, 965 So.2d 1204 (Fla. 5th DCA 2007), quashed, State v. Sloss, 1 So.3d 164 (Fla.2009). Subsequently, in Martinez v. State, 981 So.2d 449 (Fla.2008), the Florida Supreme Court held that although it was error to give such instruction where the defendant was not charged with a forcible felony independent of the crime for which he was claiming self-defense, it was not fundamental error. Based on the decision in Martinez, the Florida Supreme Court then quashed this court's initial opinion. State v. Sloss, 1 So.3d 164 (Fla.2009). On remand from the Florida Supreme Court, this court affirmed Sloss' conviction and sentence. Sloss v. State, 16 So.3d 873 (Fla. 5th DCA 2009).

The charge against Sloss arose from a confrontation between Sloss and two of his apartment complex neighbors, McKinney Milsap (the alleged victim) and Frank Milsap (McKinney's nephew). Two conflicting versions of the confrontation were presented to the jury.

According to McKinney and Frank, Sloss was angry because McKinney had complained to the landlord about the volume of the music emanating from Sloss' apartment. Sloss cursed at McKinney before going to his car to retrieve a knife. Sloss then cut McKinney's thigh with a knife, instigating a physical fight in which Sloss stabbed McKinney several times. Frank heard the altercation, rushed to the scene, and tried to assist his uncle. After being cut three times by Sloss, Frank went into his apartment and retrieved a knife. Frank returned to the scene and cut Sloss' hand, forcing Sloss to drop his knife.

Sloss' version of these events was decidedly different. He testified that he was looking under his car's hood when McKinney hit him in the back with a chair. McKinney then struck him three more times. When Sloss saw Frank come out of his apartment with a knife, Sloss then pulled out his own knife. He stabbed McKinney in self-defense.

In its charge to the jury, the trial court gave the following instruction:

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 towards 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). Sloss' counsel failed to object to this instruction.

The standard by which we determine whether a defendant is entitled to relief based on an assertion of ineffective assistance of trial counsel derives from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires a defendant to prove two elements: 1) that counsel's representation was so deficient as to fall below an objective standard of reasonableness; and 2) that the deficient performance prejudiced the defendant. Id. at 687-88, 104 S.Ct. 2052. In order to establish prejudice, the defendant must show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

An instruction on the forcible felony exception should not be given unless the defendant is charged with an independent forcible felony in addition to the offense for which he claims self-defense. Martinez, 981 So.2d at 452. When an instruction is read in the absence of a charge of an independent forcible felony, it essentially negates the defendant's theory of self-defense.

This circular logic would most probably confuse jurors because the apparent result is that the instruction precludes a finding of self-defense and amounts to a directed verdict on the affirmative defense.

Id. at 453.

Stoute v. State, 987 So.2d 748 (Fla. 4th DCA 2008) and Sipple v. State, 972 So.2d 912 (Fla. 5th DCA 2007) are instructive in discussing the analysis of the “prejudice” prong in the context of a Rule 3.850 motion, where trial counsel failed to object to a forcible felony exception instruction being given, and self-defense was the defendant's only theory of innocence.

In Stoute, the defendant was convicted of second degree murder. During the months prior to the fatal incident, there had been physical altercations between the defendant and the victim. The defendant's defense was that the victim had been threatening him with a gun because the defendant had failed to repay a debt. According to the defendant, when he went to the victim's house to repay the money, the victim pulled out a gun and the defendant then shot the victim in self-defense. The Stoute court found that not only was counsel deficient in failing to object to the forcible felony execution instruction, but also that the deficient performance prejudiced the defendant by negating his only defense. Stoute was granted a new trial.

In Sipple, the defendant was convicted of manslaughter with a firearm. Although Sipple did not testify at trial, he had given a statement to the...

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13 cases
  • Smith v. State
    • United States
    • Court of Appeal of Florida (US)
    • December 30, 2011
    ...or material to what the jury must consider in order to convict.”); McCoy v. State, 56 So.3d 37 (Fla. 1st DCA 2010); Sloss v. State, 45 So.3d 66 (Fla. 5th DCA 2010) (concluding that trial counsel's failure to object to inclusion of inapplicable “forcible felony” instruction in prosecution fo......
  • Morgan v. State
    • United States
    • Court of Appeal of Florida (US)
    • December 13, 2013
    ...defendant is charged with independent forcible felony); see also Stewart v. State, 113 So.3d 914, 916 (Fla. 2d DCA 2013); Sloss v. State, 45 So.3d 66, 68 (Fla. 5th DCA 2010). In this case, since Morgan was not charged with robbing (or attempting to rob) Hamilton, the trial court erred by in......
  • Morgan v. State
    • United States
    • Court of Appeal of Florida (US)
    • November 22, 2013
    ...is charged withindependent forcible felony); see also Stewart v. State, 113 So. 3d 914, 916 (Fla. 2d DCA 2013); Sloss v. State, 45 So. 3d 66, 68 (Fla. 5th DCA 2010). In this case, since Morgan was not charged with robbing (or attempting to rob) Hamilton, the trial court erred by instructing......
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    • U.S. District Court — Middle District of Florida
    • November 14, 2017
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2 books & journal articles
  • Pretrial motions and defenses
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 1
    • April 30, 2021
    ...the defendant is overwhelming and his self-defense claim is implausible, giving the incorrect instruction can be harmless. Sloss v. State, 45 So. 3d 66 (Fla. 5th DCA 2010) When self-defense is defendant’s only defense in an aggravated battery case, and defendant is not charged with any inde......
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    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 1
    • April 30, 2021
    ...the defendant is overwhelming and his self-defense claim is implausible, giving the incorrect instruction can be harmless. Sloss v. State, 45 So. 3d 66 (Fla. 5th DCA 2010) The court does not err in failing to give the justifiable homicide portion of the manslaughter instruction when defense......

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