DORTCH v. STATE (2007)

Barbara Dortch appeals from her judgment and sentence for felony battery.   She argues that the trial court erred in giving an erroneous jury instruction on the justifiable use of force, her theory of defense.   She concedes that defense counsel did not object to the instruction, but argues that the error is fundamental.   We agree and reverse.

 A trial court “should not give instructions which are confusing, contradictory, or misleading.”  Butler v. State, 493 So.2d 451, 452 (Fla.1986);  see also Gerds v. State, 64 So.2d 915, 916 (Fla.1953) (noting that a defendant has a due process right to have the court correctly and intelligently instruct the jury).   Here, the instruction on the justifiable use of force, as read to the jury, was confusing and misleading and effectively negated Dortch's assertion of self-defense, a disputed issue at trial.   See York v. State, 932 So.2d 413, 416 (Fla. 2d DCA 2006) (holding that the giving of an erroneous jury instruction on the defendant's theory of self-defense affected the validity of the trial).   Although Dortch's counsel did not object to the erroneous instruction, the error was fundamental.   See Carter v. State, 469 So.2d 194, 196 (Fla. 2d DCA 1985) (stating that “where, as here, a trial judge gives an instruction that is an incorrect statement of the law and necessarily misleading to the jury, and the effect of that instruction is to negate the defendant's only defense, it is fundamental error and highly prejudicial to the defendant.”).

Accordingly, we reverse and remand for a new trial.

KELLY, Judge.

WHATLEY and SILBERMAN, JJ., concur.