Zuniga v. State, 869 So. 2d 1239 (Fla. 2d DCA 2004). · Go Syfert
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Zuniga v. State, 869 So. 2d 1239 (Fla. 2d DCA 2004). Cases Citing This Book View Copy Cite
“although zuniga did not raise this issue at trial, we conclude that the erroneous instruction was fundamental error in this case. the only disputed issue at trial was whether zuniga acted in self-defense.”
51 citation events (51 in the last 25 years) across 4 distinct courts.
Strongest positive: Martinez v. State (fladistctapp, 2006-05-10) · Strongest negative: Mosansky v. State (fladistctapp, 2010-04-20)
Treatment trajectory · 2004 → 2026 · click a year to view as-of
2004 2015 2026
Top citers, strongest first. 17 distinct citers. How cited ↗
discussed Cited "but see" Mosansky v. State
Fla. Dist. Ct. App. · 2010 · signal: but cf. · quote attribution · 1 verbatim quote · confidence high
the self-defense instruction can be likened to an element of the offense for its importance to the defendant.
examined Cited as authority (verbatim quote) Martinez v. State (2×) also: Cited as authority (rule)
Fla. Dist. Ct. App. · 2006 · quote attribution · 1 verbatim quote · confidence high
although zuniga did not raise this issue at trial, we conclude that the erroneous instruction was fundamental error in this case. the only disputed issue at trial was whether zuniga acted in self-defense.
discussed Cited as authority (rule) Moss v. Secretary, Department of Corrections (Duval County)
M.D. Fla. · 2022 · confidence medium
“For that reason, Florida appellate courts have held that an instruction is erroneous if it lists the forcible felony with which the defendant is charged as the one that keys the exception which locks out self-defense.” Pinkney, 876 F.3d at 1296 (citing Zuniga v. State, 869 So. 2d 1239, 1240 (Fla. 2d DCA 2004)); see also Martinez, 981 So. 2d at 453-54 ; Giles v. State 831, So. 2d 1263, 1265 (Fla. 4th DCA 2002).
discussed Cited as authority (rule) Stewart v. State
Fla. Dist. Ct. App. · 2013 · confidence medium
Prior to Martinez, this court, relying on Zuniga v. State, 869 So.2d 1239, 1240 (Fla. 2d DCA 2004), granted numerous new trials due to errors in this instruction after concluding that the instruction “was relevant to the disputed issue at trial.” See York v. State, 932 So.2d 413, 415-16 (Fla. 2d DCA 2006).
discussed Cited as authority (rule) GARRELL v. State
Fla. Dist. Ct. App. · 2007 · confidence medium
The instruction is normally given where "the accused is charged with at least two criminal acts, the act for which the accused is claiming self-defense and a separate forcible felony." Zuniga v. State, 869 So.2d 1239, 1240 (Fla. 2d DCA 2004) (internal quotation omitted).
cited Cited as authority (rule) Grimsley v. State
Fla. Dist. Ct. App. · 2007 · confidence medium
See York v. State, 932 So.2d 413, 415-16 (Fla. 2d DCA 2006); Houston v. State, 919 So.2d 489, 490 (Fla. 2d DCA 2005); Zuniga v. State, 869 So.2d 1239, 1240 (Fla. 2d DCA 2004).
cited Cited as authority (rule) Flynn v. State
Fla. Dist. Ct. App. · 2007 · confidence medium
See York v. State, 932 So.2d 413, 415-16 (Fla. 2d DCA 2006); Houston v. State, 919 So.2d 489, 490 (Fla. 2d DCA 2005); Zuniga v. State, 869 So.2d 1239, 1240 (Fla. 2d DCA 2004).
cited Cited as authority (rule) Grimsley v. State
Fla. Dist. Ct. App. · 2006 · confidence medium
See York v. State, 932 So. 2d 413, 415-16 (Fla. 2d DCA 2006); Houston v. State, 919 So. 2d 489, 490 (Fla. 2d DCA 2005); Zuniga v. State, 869 So. 2d 1239, 1240 (Fla. 2d DCA 2004).
discussed Cited as authority (rule) Williams v. State
Fla. Dist. Ct. App. · 2005 · confidence medium
Id.; Giles, 831 So.2d at 1266 ; see also Dunnaway v. State, 883 So.2d 876, 878 (Fla. 4th DCA 2004); Hickson v. State, 873 So.2d 474, 475 (Fla. 4th DCA 2004); Carter v. State, 889 So.2d 937, 939 (Fla. 5th DCA 2004); Cleveland v. State, 887 So.2d 362, 363 (Fla. 5th DCA 2004); Bates v. State, 883 So.2d 907, 907-08 (Fla. 2d DCA 2004); Velazquez v. State, 884 So.2d 377, 377-78 (Fla. 2d DCA 2004); Baker v. State, 877 So.2d 856, 857 (Fla. 2d DCA 2004); Zuniga v. State, 869 So.2d 1239, 1239-40 (Fla. 2d DCA 2004).
discussed Cited "see" Emerson Pinkney v. Secretary, Department of Corrections (2×)
11th Cir. · 2017 · signal: see · confidence high
See Zuniga v. State, 869 So.2d 1239, 1240 (Fla. 2d DCA 2004); see also, e.g., Martinez, 981 So.2d at 453-54 (holding that the trial court erred in instructing the jury that the use of deadly force would not be justifiable if the defendant was attempting to commit an attempted murder or aggravated battery because those were “the very crimes [the defendant] attempted to justify as having been committed in self-defense”); Giles, 831 So.2d at 1266 (holding that the trial’s court forcible felony instruction was erroneous because the defendant had been charged with only one forcible felony and…
cited Cited "see" Martinez v. State
Fla. · 2008 · signal: see · confidence high
See Zuniga v. State, 869 So.2d 1239, 1240 (Fla. 2d DCA 2004).
cited Cited "see" Velazquez v. State
Fla. Dist. Ct. App. · 2004 · signal: see · confidence high
See Zuniga v. State, 869 So.2d 1239 (Fla. 2d DCA 2004); Baker v. State, 877 So.2d 856 (Fla. 2d DCA 2004); see also Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002).
discussed Cited "see, e.g." Santiago v. State
Fla. Dist. Ct. App. · 2012 · signal: see also · confidence medium
Third, because the defendant must be engaged in a separate and independent forcible felony at the time of the self-defense, “[a]n instruction on the forcible-felony exception should not be given ‘unless the defendant is charged with an independent forcible felony, in addition to the offense for which he claims self-defense.’” Redding v. State, 41 So.3d 353, 354-55 (Fla. 2d DCA 2010) (quoting Wilson v. State, 944 So.2d 1244, 1245 (Fla. 2d DCA 2006)) (emphasis added); see also Zuniga v. State, 869 So.2d 1239, 1240 (Fla. 2d DCA 2004); Stoute v. State, 987 So.2d 748, 749 (Fla. 4th DCA 2008…
discussed Cited "see, e.g." Ortiz v. State
Fla. Dist. Ct. App. · 2006 · signal: see also · confidence low
We reverse based upon the controlling precedent of Smith v. State, 933 So.2d 1275 (Fla. 2d DCA 2006); see also Velazquez v. State, 884 So.2d 377, 377-78 (Fla. 2d DCA 2004) (citing Zuniga v. State, 869 So.2d 1239 (Fla. 2d DCA 2004)); Baker v. State, 877 So.2d 856 (Fla. 2d DCA 2004).
discussed Cited "see, e.g." Swanson v. State
Fla. Dist. Ct. App. · 2006 · signal: see also · confidence low
However, we are compelled to reverse because "this court has held that the instruction essentially negates the defense and constitutes fundamental error when a defendant committed a single act and claimed self-defense." Velazquez v. State, 884 So.2d 377, 377 (Fla. 2d DCA 2004); see also Zuniga v. State, 869 So.2d 1239 (Fla. 2d DCA 2004); Baker v. State, 877 So.2d 856 (Fla. 2d DCA 2004).
cited Cited "see, e.g." Carter v. State
Fla. Dist. Ct. App. · 2004 · signal: see also · confidence low
See also Zuniga v. State, 869 So.2d 1239 (Fla. 2d DCA 2004); Baker v. State, 877 So.2d 856 (Fla. 2d DCA 2004); Dunnaway v. State, 883 So.2d 876 , 29 Fla. L.
cited Cited "see, e.g." Cleveland v. State
Fla. Dist. Ct. App. · 2004 · signal: see also · confidence low
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).
Retrieving the full opinion text from the archive…
Armando ZUNIGA, Appellant,
v.
STATE of Florida, Appellee.
2D03-1385.
District Court of Appeal of Florida, Second District.
Mar 31, 2004.
869 So. 2d 1239
Fulmer.
Cited by 35 opinions  |  Published

James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.

FULMER, Judge.

Armando Zuniga appeals his conviction for aggravated battery with a deadly weapon. We reverse and remand for a new trial because the trial court committed fundamental error in instructing the jury on Zuniga's self-defense claim.

Zuniga argues that the trial court erred in giving the following instruction:

An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which Armando Zuniga is charged if the injury to Jose Carmona resulted in the justifiable use of force likely to cause death or great bodily harm.
The use of force likely to cause death or great bodily harm is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to the defendant while resisting:
1. Any attempt to commit aggravated battery upon the defendant, or persons are [sic] justified in using force likely to cause death or great bodily harm if they reasonably believe such force is necessary to prevent:
1. Imminent death or great bodily harm to themselves or another, or
2. The imminent commission of aggravated battery against themselves or another.
However, the use of force likely to cause death or great bodily harm is not justifiable if you find:
1. The defendant was attempting to commit, or committing or escaping after the commission of an aggravated battery. ...

Zuniga's argument is supported by the Fourth District's opinions in Giles v. State,[*1240] 831 So.2d 1263 (Fla. 4th DCA 2002), and Rich v. State, 858 So.2d 1210 (Fla. 4th DCA 2003). In Giles, the court reversed an aggravated battery conviction for a new trial where the jury was instructed: "The use of force not likely to cause death or great bodily harm is not justifiable if you find that the defendant was attempting to commit, committing or escaping after the commission of an aggravated battery." 831 So.2d at 1265. The court explained that the instruction "is normally given in situations where the accused is charged with at least two criminal acts, the act for which the accused is claiming self-defense and a separate forcible felony." Id. Because Giles committed only one act, the alleged aggravated battery, the instruction was "circular and confusing to the jury such that it basically negated Giles' defense." Id. at 1265-66. In Giles, the erroneous instruction was objected to by the defense at trial. However, in Rich, where the same issue was not raised at trial, the Fourth District held that the erroneous instruction was fundamental error and reversed an aggravated battery conviction based on Giles.

We agree with the Fourth District's analysis in Giles. Although Zuniga did not raise this issue at trial, we conclude that the erroneous instruction was fundamental error in this case. The only disputed issue at trial was whether Zuniga acted in self-defense. In Reed v. State, 837 So.2d 366 (Fla.2002), the court addressed whether an erroneous instruction defining an element of an offense was fundamental error and held that the issue turned on whether the element was disputed at trial. The self-defense instruction can be likened to an element of the offense for its importance to the defendant. See Motley v. State, 155 Fla. 545, 20 So.2d 798 (1945) (reversing for a new trial based on an erroneous self-defense instruction). Therefore, applying Reed, because the erroneous instruction was relevant to the disputed issue at trial, we conclude that the error was fundamental.

Due to our reversal, we need not reach Zuniga's other issue alleging error in the instruction given on a defendant's duty to retreat when attacked in his own home.

Reversed and remanded for a new trial.

ALTENBERND, C.J., and CASANUEVA, J., concur.