Paul Cleveland v. State
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
JANUARY TERM 2004
FIFTH DISTRICT
PAUL H. CLEVELAND,
Appellant,
v.
CASE NO. 5D03-2067
STATE OF FLORIDA,
Appellee.
______________________________/
Opinion filed July 9, 2004
Appeal from the Circuit Court
for Volusia County,
Julianne Piggotte, Judge.
James B. Gibson, Public Defender, and
Susan A. Fagan, Assistant Public Defender,
Daytona Beach, for Appellant.
Charles J. Crist, Jr., Attorney General,
Tallahassee, and Allison Leigh Morris,
Assistant Attorney General, Daytona Beach,
for Appellee.
PER CURIAM.
Paul H. Cleveland appeals his conviction for aggravated battery. 1 We reverse and
remand for a new trial because the trial court committed fundamental error when it negated
Cleveland's self-defense claim by instructing the jury that the use of force was not justified if he
was committing or attempting to commit aggravated battery.
At trial, the trial court instructed the jury on Cleveland's self-defense claim. However, the
1
ยง 784.041, Fla. Stat. (2002).
trial court also gave an instruction on the forcible felony exception to self-defense. The forcible
felony instruction was based on section 776.041(1), Florida Statues (2002), which is applicable
only in circumstances where the person claiming self-defense is engaged in another independent
forcible felony at the time. Giles v. State, 831 So. 2d 1263 (Fla. 4th DCA 2002); see also Zuniga
v. State, 869 So. 2d 1239 (Fla. 2d DCA 2004); Barnes v. State, 868 So. 2d 606 (Fla. 1st DCA 2004).
More specifically, the forcible felony instruction is given in situations where the accused is charged with
at least two criminal acts, the act for which the accused is claiming self-defense as well as a separate
forcible felony. In the instant case, the trial court's instruction on the forcible felony exception to selfdefense was erroneous because Cleveland was charged with only one forcible felony, the alleged
aggravated battery. Giles, 831 So. 2d at 1265. Giving a section 776.041(1) instruction where the
only charge against Cleveland was the alleged aggravated battery, an act he claimed was done in selfdefense, would improperly negate the self-defense claim. Id. at 1266.
Although Cleveland did not make an objection at trial to the section 776.041(1) instruction, the
giving of the instruction to the jury constitutes fundamental error. E.g., Zuniga, 869 So. 2d at 1239;
Rich v. State, 858 So. 2d 1210 (Fla. 4th DCA 2003).
REVERSED and REMANDED.
PETERSON, GRIFFIN and PALMER, JJ., concur.
2
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