McJimsey v. State
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2009
TROY MCJIMSEY,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D06-2336
[ October 21, 2009 ]
ON REMAND FROM
THE FLORIDA SUPREME COURT
PER CURIAM.
In McJimsey v. State, 959 So. 2d 1257 (Fla. 4th DCA 2007), we
reversed for a new trial, holding that the trial court committed
fundamental error when it gave an incorrect self-defense jury instruction
on the justifiable use of deadly force. However, our opinion was quashed
by the Florida Supreme Court and remanded for reconsideration in light
of Martinez v. State, 981 So. 2d 449 (Fla. 2008). State v. McJimsey, 999
So. 2d 1062 (Fla. 2009). In Martinez, the supreme court stated that “it is
error for the trial court to read the forcible felony instruction to the jury
where the defendant is not charged with an independent forcible felony.
However, the erroneous reading of this instruction constitutes
fundamental error only when it deprives the defendant of a fair trial.”
Martinez, 981 So. 2d at 457 (emphasis in original).
Appellant was charged with armed attempted first-degree murder, to
which h e asserted a claim of self-defense. Although the trial court
erroneously read the forcible-felony portion of the self-defense instruction
to the jury, we determine that such error was not fundamental. See
Martinez, 981 So. 2d 449; Permenter v. State, 978 So. 2d 277 (Fla. 4th
DCA 2008); Farmer v. State, 975 So. 2d 1275 (Fla. 4th DCA 2008), rev.
denied, 988 So. 2d 621 (Fla. 2008). A review of the record fails to show
that the instruction deprived appellant of a fair trial. Appellant’s claim of
self-defense was weak. Appellant received no visible injuries when the
victim allegedly bashed his head against the floor in the foyer by the front
door. He returned to the living area to retrieve his knife and then
stabbed the victim on the back of his shoulder and multiple times in the
abdomen, with enough force to kill him. The record further shows that
the state did not argue the forcible-felony exception to self-defense in its
closing argument. We thus affirm appellant’s judgment of conviction and
sentence.
Affirmed.
WARNER, TAYLOR and HAZOURI, JJ., concur.
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Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Charles M. Greene, Judge; L.T. Case No. 05-4854 CF
10 A.
Carey Haughwout, Public Defender, and David John McPherrin,
Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Daniel P.
Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
Not final until disposition of timely filed motion for rehearing.
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