FEDERIC v. STATE (2005)

District Court of Appeal of Florida,Fourth District.

Jean FEDERIC, Appellant, v. STATE of Florida, Appellee.

No. 4D04-1098.

Decided: August 24, 2005

Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.

Jean Federic appeals his judgment of conviction and sentence for aggravated battery with a deadly weapon. We reverse and remand for a new trial, because the trial court reversibly erred in instructing the jury that appellant was not justified in the use of force if he was “attempting to commit, committing, or escaping after the commission of an aggravated battery.” This portion of the instruction on the defense of justifiable use of deadly and non-deadly force was not applicable in this case because appellant was charged only with the forcible felony of aggravated battery; appellant was not charged with committing a separate aggravated battery. Thus, the instruction improperly negated appellant's self-defense claim. See Craven v. State, 908 So.2d 523 (Fla. 4th DCA 2005); Rich v. State, 858 So.2d 1210 (Fla. 4th DCA 2003); Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002).

We affirm as to all other issues raised by appellant.

Affirmed in part, Reversed in part and Remanded.

TAYLOR, J.

WARNER and KLEIN, JJ., concur.

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