Newcomb v. State
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT KIMBERLY NEWCOMB, ) ) Appellant, ) ) v. ) ) STATE OF FLORIDA, ) ) Appellee. ) ) ________________________________ ) Case No. 2D05-588 Opinion filed November 23, 2005. Appeal from the Circuit Court for Hillsborough County; Ronald Ficarrotta, Judge. James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee. KELLY, Judge. Kimberly Newcomb appeals her conviction and twenty-year sentence for manslaughter by culpable negligence with a deadly weapon. The State concedes that reversal is mandated based upon fundamental error in the jury instruction on self-defense. In giving the self-defense jury instruction at Newcomb s trial, the trial court included an instruction on the forcible felony exception to self-defense. This court has held that when a defendant commits a single act and claims selfdefense, as is the case here, the giving of this instruction constitutes fundamental error since it essentially negates the defense. See Velazquez v. State, 884 So. 2d 377 (Fla. 2d DCA 2004); Bates v. State, 883 So. 2d 907 (Fla. 2d DCA 2004); Zuniga v. State, 869 So. 2d 1239 (Fla. 2d DCA 2004). Accordingly, we reverse and remand for a new trial. Reversed and remanded. WHATLEY and NORTHCUTT, JJ., Concur. -2-
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