Opinion
Case No. 2D04-1953.
Opinion filed July 6, 2005.
Appeal from the Circuit Court for Pasco County, Michael F. Andrews, Judge.
James Marion Moorman, Public Defender, and James Dickson Crock, Special Assistant Public Defender, Bartow, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appellee.
John Paul Moore challenges his conviction for aggravated battery with a deadly weapon. Because the trial court erred in giving an inaccurate and misleading instruction on the issue of justifiable use of deadly force, we reverse.
Moore contends that the trial court erred in instructing the jury that: "the use of force likely to cause death or great bodily harm is not justifiable if you find John Paul Moore was attempting to commit, committing, or escaping after the commission of aggravated battery as has been previously defined." We agree that, where the only charge was aggravated battery, the giving of this instruction improperly negated Moore's self-defense claim. See York v. State, 891 So. 2d 569 (Fla. 2d DCA 2004); Velazquez v. State, 884 So. 2d 377 (Fla. 2d DCA),review denied, 890 So. 2d 1115 (Fla. 2004); Hernandez v. State, 884 So. 2d 281 (Fla. 2d DCA 2004); Bates v. State, 883 So. 2d 907 (Fla. 2d DCA 2004); Baker v. State, 877 So. 2d 856 (Fla. 2d DCA 2004); Zuniga v. State, 869 So. 2d 1239 (Fla. 2d DCA 2004).
The record reflects that this issue was preserved. Defense counsel objected to the instruction during the charge conference and appropriately argued that the instruction was not applicable. Contrary to the State's assertion, we do not interpret the record to show that the defense abandoned the objection after the court overruled it. Error of this type has been determined to be fundamental error, and courts have reversed even without an objection by the defense. See, e.g., Zuniga, 869 So. 2d 1239;Rich v. State, 858 So. 2d 1210 (Fla. 4th DCA 2003). "Fundamental error exists where an inaccurate and misleading instruction negates the defendant's only defense." Carter v. State, 889 So. 2d 937, 939 (Fla. 5th DCA 2004). We need not employ a harmless error analysis here because fundamental error is by its nature harmful. See Reed v. State, 837 So. 2d 366 (Fla. 2002); Carter, 889 So. 2d 937, 939 n. 1 (rejecting application of harmless error analysis in case involving error in instructing on the forcible felony exception to self-defense).
Because we conclude that Moore's first issue requires reversal for a new trial, we do not reach the other two issues raised on appeal.
Reversed and remanded for a new trial.
WHATLEY and CANADY, JJ., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.