Ward v. State, 12 So. 3d 920 (Fla. 1st DCA 2009). · Go Syfert
Ward v. State, 12 So. 3d 920 (Fla. 1st DCA 2009). Cases Citing This Book View Copy Cite
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A trial court commits fundamental error when it improperly includes an intent to kill element in a jury instruction for the lesser included offense of manslaughter by act.

An appellant challenges his convictions for second-degree murder and attempted second-degree murder on several grounds. The trial court improperly instructed the jury on the justifiable use of non-deadly force by substituting the victim's name for the defendant's name, which shifted the focus of the self-defense theory. Additionally, the court erred by instructing the jury on the forcible felony exception to self-defense when no separate forcible felony was presented. Finally, the court committed fundamental error by including an intent to kill element in the jury instruction for the lesser included offense of manslaughter by act. Because of these instructional errors, the court reverses the convictions and remands the case for a new trial.

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Brandon Michael WARD, Appellant,
v.
STATE of Florida, Appellee
1D07-4126.
District Court of Appeal of Florida, First District.
Jul 16, 2009.
Published opinion
12 So. 3d 920
2009 Fla. App. LEXIS 9685
2009 WL 2048922
Nancy A. Daniels, Public Defender, and Nada M. Carey, Assistant Public Defender, Tallahassee, for Appellant., Bill McCollum, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
Barfield, Davis, Roberts.
Cited by 4 opinions  |  Published
PER CURIAM.

Appellant, Brandon Michael Ward, challenges his convictions and sentences for second-degree murder and attempted second-degree on several grounds, three of which merit discussion. First, the trial court erred in instructing the jury on the charge of attempted first-degree murder that one of the victims was justified in using non-deadly force against Appellant if the victim reasonably believed that he was in imminent danger of death or great bodily harm. The substitution of the victim’s name for the defendant’s name in the standard jury instruction on the justifiable use of non-deadly force was misleading and shifted the focus from Appellant’s theory of self-defense to whether or not the victim had a legal right to attack Appellant. Butler v. State, 493 So.2d 451 (Fla.1986). Second, the trial court erred in instructing the jury on the forcible felony exception to self-defense on the charge of attempted first-degree murder because Appellant claimed self-defense as to both charges and there was not a separate forcible felony for the jury to consider. Gilchrist v. State, 938 So.2d 654, 655 (Fla. 4th DCA 2006). Finally, fundamental error occurred in this case when the trial court gave the standard jury instruction for the lesser included offense of manslaughter by act, which improperly imposed the additional element of intent to kill. Montgomery v. State, — So.3d -, 34 Fla. L. Weekly D360, 2009 WL 350624 (Fla. 1st DCA Feb. 12, 2009) (question certified;[*921] conflict certified). Therefore, this case is reversed and remanded for a new trial.

REVERSED and REMANDED.

BARFIELD, DAVIS, and ROBERTS, JJ., concur.