Smith v. State, 98-314.

• Decision Date: 26 March 1999
• Docket Number: No. 98-314.,98-314.
• Citation: 729 So.2d 496
• Parties: Donnie SMITH, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

729 So.2d 496

Donnie SMITH, Appellant, v. STATE of Florida, Appellee.

No. 98-314.

District Court of Appeal of Florida, Fifth District.

March 26, 1999.

James B. Gibson, Public Defender, and Stephanie H. Park, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.

ANTOON, J.

The trial court entered judgment and sentence in accordance with the jury's verdict finding Donnie Smith guilty of committing the crime of possession of a firearm by a convicted felon.¹ Mr. Smith appeals contending that the trial court erred in refusing to instruct the jury on self-defense and in assessing an additional 18 points on the sentencing guidelines scoresheet for possession of a firearm. We affirm Mr. Smith's conviction, but vacate his sentence.

At the conclusion of his trial, Mr. Smith requested that the trial court instruct the jury on the defense theories of necessity and self-defense. The trial court issued the necessity instruction, stating:

It is a defense to the offense of a possession of a firearm by a convicted felon if you find the following:

1) defendant must be in present or imminent peril of death or serious bodily injury or reasonably believe to be in such danger,

2) defendant must not have intentionally or recklessly placed himself in a situation in which it was probably, and that word should be probable and not probably, so if you will insert an "e" where the "y" is, and to choose a criminal conduct,

3) the defendant must not have any reasonable legal alternative to possessing the handgun,

4) the handgun must be made available to the defendant without preconceived design, and

5) the defendant must give up possession of the handgun as soon as necessity or apparent necessity ends.

However, the trial court refused to issue an instruction on self-defense. Our review of the record reveals that, under the facts of this case, the necessity instruction was sufficient and the trial court's refusal to give the self-defense instruction was proper. See Marrero v. State, 516 So.2d 1052, 1056 (Fla. 3d DCA 1987).

Mr. Smith correctly argues that the assessment of 18 additional points for possession of a firearm was improper because such possession was an essential element of the crime charged. See White v. State, 714 So.2d 440 (Fla.1998). Accordingly, we must vacate Mr. Smith's sentence and remand this matter for resentencing in accordance with the decision in White. In doing so, we note that the White decision was released after sentence was imposed in the instant case, and that in assessing the additional 18 points the trial court relied on earlier decisions released by this court.

JUDGMENT AFFIRMED; SENTENCE VACATED; and CAUSE REMANDED for RESENTENCING.

THOMPSON, J., concurs.

W. SHARP, J., dissents, with opinion.

W. SHARP, J., dissenting.

Although this is a close case, I agree with Smith that, as requested by defense counsel, the trial court should have given the instruction concerning self-defense, as well as the defense of necessity,² because the former includes the "castle doctrine." The castle doctrine provides:

If the defendant was attacked in [his][her] own home or on [his][her] own premises, [he][she] had no duty to retreat and had the lawful right to stand [his][her] ground and meet force with force, even to the extent of using force likely to cause death or great bodily harm if it was necessary to prevent: (death or great bodily harm to [himself][herself][another]).

Smith was charged with possession of a firearm by a convicted felon. His version of the events was that he was pursued into his home by the victim ("right on my back"), a much larger man, and that the victim was carrying a knife in one hand. Smith was frightened, and felt it was necessary to defend himself with a firearm. The necessity instruction would normally cover such circumstances, but here, as defense counsel expressly pointed out, Smith was being pursued by a knife-"toting" man into his home.

A defendant is entitled to have the jury instructed on applicable law if the evidence supports it. Campbell v. State, 577 So.2d 932, 935 (Fla.1991); Smith v. State, 424 So.2d 726, 732 (Fla.1982); Curington v. State, 704 So.2d 1137 (Fla. 5th DCA 1998); Spence v. State, 678 So.2d 459 (Fla. 4th DCA 1996); Garramone v. State, 636 So.2d 869 (Fla. 4th DCA 1994); Kelvin v. State, 610 So.2d 1359 (Fla. 1st DCA 1992). And where the evidence does support a particular jury instruction, it is error not to give it. Curington; Keys v. State, 606 So.2d 669 (Fla. 1st DCA 1992). The evidence in this case supports the instruction as Smith requested.

The necessity instruction provides that under certain circumstances a convicted felon may possess a firearm. One of those circumstances is the defendant "must not have any reasonable legal alternative to possessing the handgun." The jury could have considered that Smith should have...