RICH v. STATE (2003)

 We reverse appellant's conviction for aggravated battery because the trial court negated appellant's self-defense claim by instructing the jury that the use of force was not justified if appellant was committing or attempting to commit aggravated battery.   In Giles v. State, 831 So.2d 1263, 1265 (Fla. 4th DCA 2002), we held that this instruction, which is based upon section 776.041, Florida Statutes (2002), was applicable only in circumstances where the person claiming self-defense is engaged in another independent forcible felony at the time.   Giving this instruction where the only charge against the defendant is the aggravated battery, which also was the act that the defendant claimed was self-defense, would improperly negate the self-defense claim.   See id. at 1266.

 Although appellant did not object to this instruction, we hold that it is fundamental error.  “An incorrect jury instruction on the defense of justifiable use of deadly and non-deadly force constitutes fundamental error if there is a reasonable possibility that the instruction may have led to the conviction.”  Thomas v. State, 831 So.2d 253, 253 (Fla. 3d DCA 2002) (citations omitted).   We determined in Giles that this instruction was misleading, and it was reasonably possible that it contributed to Giles' conviction under circumstances similar to this case.  831 So.2d at 1266.   In addition, we have held that fundamental error results where an inaccurate and misleading instruction negates a defendant's only defense.   See Davis v. State, 804 So.2d 400, 404 (Fla. 4th DCA 2001).

Reversed and remanded.

PER CURIAM.

GUNTHER, WARNER and MAY, JJ., concur.