self-defense instruction in Florida

2025See Martinez, 981 So. 2d at 453 .

2010In Martinez v. State, 981 So.2d 449 (Fla.2008), the supreme court stated that in order to give the forcible-felony exception to the self-defense instruction, there must be a separate and distinct forcible felony.

2006Giles v. State, 831 So.2d 1263, 1265 (Fla. 4th DCA 2002). [3] To do otherwise completely negates a defendant's self-defense claim.

2005The self-defense instruction given at trial was disapproved as circuitous and misleading in Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002), a case decided almost ten months prior to Mr. Brown's trial.

2008This self-defense instruction derives from section 776.041(1), and we explained in Rich v. State, 858 So.2d 1210, 1210 (Fla. 4th DCA 2003), that this instruction "was applicable only in circumstances *1263 where the person claiming self-defense is engaged in another independent forcible felony at the time.

2005Giving 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. 858 So.2d at 1210 .

2025In addition to a defendant being permitted to affirmatively assert defense theories that do not necessarily disprove self-defense without sacrificing the right to 3 The defendant in Johnson was intoxicated at the time of the alleged offense. 634 So. 2d at 1145, n.1 . 20 a self-defense instruction, a defendant may also simply argue that the State failed to meet its burden of proof on the underlying crime charged without sacrificing the right to a jury instruction on self-defense.

2024Further, to warrant a self-defense instruction, “the defendant does not have to testify at trial; his or her statement to the police admitted into evidence may be sufficient.” Sipple v. State, 972 So. 2d 912, 916 (Fla. 5th DCA 2007). “[I]f a jury can reasonably infer from circumstantial evidence presented at trial that the defendant had the state of mind necessary for self-defense, then the defendant is entitled to a jury instruction on self-defense.” Spurgeon v. State, 114 So. 3d 1042, 1047 (Fla. 5th DCA 2013) (citing Johnson v. State, 634 So. 2d 1144, 1145 (Fla. 4th DCA 1994)).

2021See Howard, 288 So. 3d at 1251 (finding ineffective assistance of counsel apparent on the face of the record where trial counsel “fail[ed] to respond to the trial court’s request for authority” on the point that “[t]he State’s evidence and argument about [the defendant’s] prearrest, pre-Miranda silence were improper” and where trial counsel “fail[ed] to further object to such evidence and argument”); see also Kruse, 222 So. 3d at 17 (finding trial counsel “constitutionally ineffective” where it was apparent on the face of the record that counsel had “neglect[ed] to request a self-defense instr

2018See State v. Plummer, 228 So. 3d 661, 668 (Fla. 1st DCA 2017) (concluding that counsel performed deficiently by failing to present evidence as to the nature of the gun—BB or airsoft—where the defendant was charged with carrying a weapon); Kruse v. State, 222 So. 3d 13, 17 (Fla. 4th DCA 2017) (concluding counsel performed deficiently in failing to request a self-defense instruction where self-defense was the only proffered defense to the charge); State v. Jackson, 204 So. 3d 958, 964 (Fla. 5th DCA 2016) (concluding that counsel rendered deficient performance where she misunderstood the law on i

2024Additionally, in assessing whether there is any evidence to support a theory of self-defense, no particular type of evidence is required. “[A] defendant is not required to testify at trial to receive a jury instruction on self-defense.” Spurgeon, 114 So. 3d at 1047 ; see also Wright, 705 So. 2d at 104 (“To raise self-defense, a defendant does not have to testify directly about his intent behind an act occurring in the past, or that he made a conscious decision to defend himself in a certain way.”). 19 “A defendant’s statements admitted into evidence at trial may be sufficient evidence for a se

2013See also Taylor v. State, 410 So.2d 1358, 1359 (Fla. 1st DCA 1982) (“A defendant is entitled to his requested self-defense instruction regardless of how weak or improbable his testimony may have been with respect to the circumstances leading up to the battery.”); Parrish v. State, 113 So.2d 860, 863 (Fla. 2d DCA 1959) (“Regardless of how improbable the defendant’s testimony was, it certainly was not demonstrably false, and as our Supreme Court did ..., we must hold that the trial court erred in refusing a self-defense instruction.”); Wright v. State, 705 So.2d 102, 104 (Fla. 4th DCA 1998) (“A

2013See also Taylor v. State, 410 So.2d 1358, 1359 (Fla. 1st DCA 1982) (“A defendant is entitled to his requested self-defense instruction regardless of how weak or improbable his testimony may have been with respect to the circumstances leading up to the battery.”); Parrish v. State, 113 So.2d 860, 863 (Fla. 2d DCA 1959) (“Regardless of how improbable the defendant’s testimony was, it certainly was not demonstrably false, and as our Supreme Court did ..., we must hold that the trial court erred in refusing a self-defense instruction.”); Wright v. State, 705 So.2d 102, 104 (Fla. 4th DCA 1998) (“A

2001See Taylor v. State, 410 So.2d 1358, 1359 (Fla. 1st DCA 1982) ("There is a right to a self-defense instruction when there has been sufficient evidence presented to support it....

2008See, e.g., Sutton v. State, 929 So.2d 1105, 1107 (Fla. 4th DCA) (substantially similar), receded from on other grounds by Yisrael v. State, 938 So.2d 546, 547 (Fla. 4th DCA 2006), approved, No. SC06-2211, ___ So.2d ___, 2008 WL 450398 (Fla. Feb. 21, 2008); Thomas v. State, 918 So.2d 327, 328 (Fla. 1st DCA 2005) ("We affirm and decline to certify conflict with courts that have found similar errors to be fundamental because, as a matter of law, appellant was not entitled to a self-defense instruction."); Hickson v. State, 917 So.2d 939, 941 (Fla. 4th DCA 2005) ("[W]e conclude that because there

2006See Hickson v. State, 917 So.2d 939 (Fla. 4th DCA 2005) (following the grant of a belated appeal based on appellate counsel's failure to argue improper jury instruction, court found in affirming appeal that appellate counsel's failure in this regard did not amount to fundamental error because appellant was not entitled to receive the self-defense instruction at trial.).

2020See, e.g., Antoine v. State, 138 So. 3d 1064 , 1075–76 (Fla. 4th DCA 2014).

2020See, e.g., Antoine v. State, 138 So. 3d 1064, 1075-76 (Fla. 4th DCA 2014).

2017“The trial court should not. weigh the evidence for the purpose of determining whether the instruction is appropriate.” Id. (quoting Garramone v. State, 636 So.2d 869, 870 (Fla. 4th DCA 1994)); see also Calkins v. State, 170 So.3d 888, 890 (Fla. 4th DCA 2015) (finding error in the court’s decision that the evidence' did not support a self-defense instruction).

2017See Pitts v. State, 989 So.2d 27, 30 (Fla. 2d DCA 2008) (failure to provide a self-defense instruction was error where' defendant was charged with burglary with assault or battery and argued that his entry into the truck and battery were necessitated by self-defense because, while defending himself, he lost his balance and reached into the truck to grab the driver’s shirt); see also Gregory, 937 So.2d at 182 (failure to provide self-defense instruction was error where defendant was charged with burglary with battery and there was testimony that the victim first pushed the defendant, who pushed

2008See, e.g., Sutton v. State, 929 So.2d 1105, 1107 (Fla. 4th DCA) (substantially similar), receded from on other grounds by Yisrael v. State, 938 So.2d 546, 547 (Fla. 4th DCA 2006), approved, No. SC06-2211, ___ So.2d ___, 2008 WL 450398 (Fla. Feb. 21, 2008); Thomas v. State, 918 So.2d 327, 328 (Fla. 1st DCA 2005) ("We affirm and decline to certify conflict with courts that have found similar errors to be fundamental because, as a matter of law, appellant was not entitled to a self-defense instruction."); Hickson v. State, 917 So.2d 939, 941 (Fla. 4th DCA 2005) ("[W]e conclude that because there

2006"A trial court errs by giving the self-defense instruction where the facts indicate that, as a matter of law, it was unreasonable for a defendant to resort to deadly force." Thomas, 918 So.2d at 330 .

2010See id. at 452-53 (quoting Hopson v. State, 127 Fla. 243 , 168 So. 810 , 811 (1936)); Cancel v. State, 985 So.2d 1127 , 1131 n. 3 (Fla. 5th DCA 2008) (Griffin, J., specially concurring); but cf. Zuniga v. State, 869 So.2d 1239, 1240 (Fla. 2d DCA 2004) (“The self-defense instruction can be likened to an element of the offense for its importance to the defendant.”).

2008See Zuniga v. State, 869 So.2d 1239, 1240 (Fla. 2d DCA 2004).

2013See also Taylor v. State, 410 So.2d 1358, 1359 (Fla. 1st DCA 1982) (“A defendant is entitled to his requested self-defense instruction regardless of how weak or improbable his testimony may have been with respect to the circumstances leading up to the battery.”); Parrish v. State, 113 So.2d 860, 863 (Fla. 2d DCA 1959) (“Regardless of how improbable the defendant’s testimony was, it certainly was not demonstrably false, and as our Supreme Court did ..., we must hold that the trial court erred in refusing a self-defense instruction.”); Wright v. State, 705 So.2d 102, 104 (Fla. 4th DCA 1998) (“A

2005Accord Goode, 856 So.2d at 1104 ; Pope v. State, 458 So.2d 327, 329 (Fla. 1st DCA 1984) ("The evidence need not be `convincing to the trial court,' before the instruction can be submitted to the jury,... as it suffices that the defense is `suggested' by the testimony."); Parrish v. State, 113 So.2d 860, 863 (Fla. 2d DCA 1959) (no matter how improbable defendant's testimony was, if not demonstrably *411 false, the trial court errs in refusing to give a self-defense instruction).

2007See Gilchrist v. State, 938 So.2d 654, 656-57 (Fla. 4th DCA 2006); Bevan v. State, 908 So.2d 524, 525 (Fla. 2d *1119 DCA 2005); Bates v. State, 883 So.2d 907, 907-08 (Fla. 2d DCA 2004).

2005Id.; 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).

2007See Sutton v. State, 929 So.2d 1105, 1107 (Fla. 4th DCA 2006), receded from on other grounds in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006), rev. granted, 956 So.2d 458 (Fla.2007); Thomas v. State, 918 So.2d 327, 330 (Fla. 1st DCA 2005); Hickson v. State, 917 So.2d 939, 940-41 (Fla. 4th DCA 2005); Berrios v. State, 781 So.2d 455, 457 (Fla. 4th DCA 2001); but see Flynn v. State, 947 So.2d 1229, 1230 (Fla. 2d DCA 2007) (declining to answer whether court agreed with Sutton and Thomas analyses); Ortiz v. State, 942 So.2d 1013, 1015 (Fla. 2d DCA 2006) (same).

2006See Thomas v. State, 918 So.2d 327 (Fla. 1st DCA 2005); Hickson v. State, 917 So.2d 939 (Fla. 4th DCA 2005); Berrios v. State, 781 So.2d 455 (Fla. 4th DCA 2001).

2005Id.; 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).

2004The offending jury instruction read as follows: "The use of nondeadly force is not justifiable if you find the following: One, the defendant was attempting to commit, committing or escaping after the commission of Aggravated Assault." Although Bates' trial counsel did not object to the trial court giving this instruction, it has been held that this instruction should be given only when the person claiming self-defense was engaged in another independent forcible felony at the time, not the forcible felony as to which the defendant claims self-defense. [2] "Giving this instruction where the only

2025See Pitts, 989 So. 2d at 31 .

2017See Pitts v. State, 989 So.2d 27, 30 (Fla. 2d DCA 2008) (failure to provide a self-defense instruction was error where' defendant was charged with burglary with assault or battery and argued that his entry into the truck and battery were necessitated by self-defense because, while defending himself, he lost his balance and reached into the truck to grab the driver’s shirt); see also Gregory, 937 So.2d at 182 (failure to provide self-defense instruction was error where defendant was charged with burglary with battery and there was testimony that the victim first pushed the defendant, who pushed

2025The cross-examination of State witnesses can also support a claim of self-defense.” Smith, 2025 WL 1786726 , at *5 (quoting Spurgeon, 114 So. 3d at 1047 ); see also Jefferson v. State, 264 So. 3d 1019, 1028 (Fla. 2d DCA 2018).

2024The cross-examination of State witnesses can also support a claim of self-defense.” Spurgeon, 114 So. 3d at 1047 ; see also Jefferson v. State, 264 So. 3d 1019, 1028 (Fla. 2d DCA 2018).

2024See Elder v. State, 296 So. 3d 440 , 444 (Fla. 4th DCA 2020) (“[A] trial judge may not weigh the evidence before him in determining whether the instruction is appropriate; it is enough if the defense is suggested by the evidence presented.” (quoting Chavers v. State, 901 So. 2d 409, 410 (Fla. 1st DCA 2005))); Vila v. State, 74 So. 3d 1110, 1112 (Fla. 5th DCA 2011) (“In determining whether to give a requested instruction, the trial court should consider the evidence presented without weighing the evidence, as the latter is a task for the jury.”); Dias v. State, 812 So. 2d 487, 491 (Fla. 4th DCA

2012Mathis v. State, 973 So.2d 1153, 1157 (Fla. 1st DCA 2006) (finding that a self-defense instruction was required based on facts including the defendant’s testimony that the victim was the aggressor and he was simply defending himself); Chavers v. State, 901 So.2d 409, 411 (Fla. 1st DCA 2005) (holding the lower court erred in failing to give the requested instruction in a self-defense case where the defendant testified that he suffered from a nervous condition and that he reacted out of fear for his own safety); Owens v. State, 866 So.2d 129, 131-32 (Fla. 5th DCA 2004) (finding that defendant’s

2019There are two distinct pieces of evidence that should have been admitted: (1) The defendant’s testimony that he knew about the specific act of violence was admissible and relevant to show “the reasonableness of the defendant’s apprehension to support a self-defense claim.” State v. Smith, 573 So. 2d 306, 318 (Fla. 1990). (2) Bazini’s testimony about the violent act was admissible and relevant to corroborate the defendant’s testimony.

1995Further, “[a] defendant’s testimony that he or she knew about specific acts of violence committed by the victim is relevant to show, ... the reasonableness of the defendant’s apprehension to support a self-defense claim.” State v. Smith, 573 So.2d 306, 318 (Fla.1990).

2019See Tynes v. State, 262 So. 3d 851, 852 (Fla. 1st DCA 2018) (granting petition for prohibition where trial court failed to give retroactive effect to 2017 SYG amendment); Rosario v. State, 165 So. 3d 852, 854-55 (Fla. 1st DCA 2015) (holding that prohibition lies to challenge denial of self-defense immunity); Little v. State, 111 So. 3d 214 , 216 n.1 (Fla. 2d DCA 2013) (petition for writ of prohibition is the appropriate mechanism to challenge the denial of a motion to dismiss based on a self-defense immunity statute).

2019See Tsavaris v. Scruggs, 360 So. 2d 745, 747 (Fla. 1977) (appropriate procedure to challenge a trial court’s authority to continue prosecution is through a petition for writ of prohibition); Rosario v. State, 165 So. 3d 852, 854-55 (Fla. 1st DCA 2015) (Because a writ of prohibition stops the trial court from 6 continuing to prosecute a defendant who should be immune from prosecution, it is the preferred method to challenge a denial of motion to dismiss that has occurred after or without an evidentiary hearing.); Little v. State, 111 So. 3d 214 , 216 n.1 (Fla. 2d DCA 2013) (petition for writ of

2018Compare Cole v. State, 221 So. 3d 534 , 543−44 (Fla. 2017) (counsel’s decision to abandon duress defense and instead argue that the defendant did not knowingly participate in the crime was strategic and reasonable), with Kruse v. State, 222 So. 3d 13, 17 (Fla. 4th DCA 2017) (counsel was ineffective on the face of the record for failing to request a self-defense instruction when the evidence supported the instruction and there could be no strategic basis for not asking for the instruction as self-defense was the defendant’s only proffered defense).

2018Compare Cole v. State, 221 So. 3d 534 , 543−44 (Fla. 2017) (counsel’s decision to abandon duress defense and instead argue that the defendant did not knowingly participate in the crime was strategic and reasonable), with Kruse v. State, 222 So. 3d 13, 17 (Fla. 4th DCA 2017) (counsel was ineffective on the face of the record for failing to request a self-defense instruction when the evidence supported the instruction and there could be no strategic basis for not asking for the instruction as self-defense was the defendant’s only proffered defense).

2024Further, to warrant a self-defense instruction, “the defendant does not have to testify at trial; his or her statement to the police admitted into evidence may be sufficient.” Sipple v. State, 972 So. 2d 912, 916 (Fla. 5th DCA 2007). “[I]f a jury can reasonably infer from circumstantial evidence presented at trial that the defendant had the state of mind necessary for self-defense, then the defendant is entitled to a jury instruction on self-defense.” Spurgeon v. State, 114 So. 3d 1042, 1047 (Fla. 5th DCA 2013) (citing Johnson v. State, 634 So. 2d 1144, 1145 (Fla. 4th DCA 1994)).

2024Additionally, in assessing whether there is any evidence to support a theory of self-defense, no particular type of evidence is required. “[A] defendant is not required to testify at trial to receive a jury instruction on self-defense.” Spurgeon, 114 So. 3d at 1047 ; see also Wright, 705 So. 2d at 104 (“To raise self-defense, a defendant does not have to testify directly about his intent behind an act occurring in the past, or that he made a conscious decision to defend himself in a certain way.”). 19 “A defendant’s statements admitted into evidence at trial may be sufficient evidence for a se

2007Hawk, 902 So.2d at 331 ; Cleveland, 887 So.2d at 363 ; Williams v. State, 901 So.2d 899, 899 (Fla. 4th DCA 2005).

2007Thus, the forcible felony instruction is intended to be used only when the defendant "is charged with at least two criminal acts, the act for which the accused is claiming self-defense as well as a separate forcible felony." Cleveland, 887 So.2d at 363 ; see also Bertke; Carter.

2019See Tsavaris v. Scruggs, 360 So. 2d 745, 747 (Fla. 1977) (appropriate procedure to challenge a trial court’s authority to continue prosecution is through a petition for writ of prohibition); Rosario v. State, 165 So. 3d 852, 854-55 (Fla. 1st DCA 2015) (Because a writ of prohibition stops the trial court from 6 continuing to prosecute a defendant who should be immune from prosecution, it is the preferred method to challenge a denial of motion to dismiss that has occurred after or without an evidentiary hearing.); Little v. State, 111 So. 3d 214 , 216 n.1 (Fla. 2d DCA 2013) (petition for writ of

2019See Tynes v. State, 262 So. 3d 851, 852 (Fla. 1st DCA 2018) (granting petition for prohibition where trial court failed to give retroactive effect to 2017 SYG amendment); Rosario v. State, 165 So. 3d 852, 854-55 (Fla. 1st DCA 2015) (holding that prohibition lies to challenge denial of self-defense immunity); Little v. State, 111 So. 3d 214 , 216 n.1 (Fla. 2d DCA 2013) (petition for writ of prohibition is the appropriate mechanism to challenge the denial of a motion to dismiss based on a self-defense immunity statute).

2025Id.

2010See id. at 452-53 (quoting Hopson v. State, 127 Fla. 243 , 168 So. 810 , 811 (1936)); Cancel v. State, 985 So.2d 1127 , 1131 n. 3 (Fla. 5th DCA 2008) (Griffin, J., specially concurring); but cf. Zuniga v. State, 869 So.2d 1239, 1240 (Fla. 2d DCA 2004) (“The self-defense instruction can be likened to an element of the offense for its importance to the defendant.”).

2025Goode, 856 So. 2d at 1104–05.

2005Accord Goode, 856 So.2d at 1104 ; Pope v. State, 458 So.2d 327, 329 (Fla. 1st DCA 1984) ("The evidence need not be `convincing to the trial court,' before the instruction can be submitted to the jury,... as it suffices that the defense is `suggested' by the testimony."); Parrish v. State, 113 So.2d 860, 863 (Fla. 2d DCA 1959) (no matter how improbable defendant's testimony was, if not demonstrably *411 false, the trial court errs in refusing to give a self-defense instruction).

2025The trial court in Mizell, for example, set forth in its pretrial order five specific conditions that had to be met in order for the defense to introduce the PTSD evidence, including the defendant himself testifying and laying a predicate, the expert witness being allowed only to lay out the defendant’s background but not vouch for it, and the expert witness being prohibited from offering an opinion on the validity of the defendant’s self-defense claim. 773 So. 2d at 620 .

2018For example, in Filomeno v. State, 930 So. 2d 821, 822-23 (Fla. 5th DCA 2006), the court found that it was error to exclude a psychologist’s testimony about the characteristics of the “fight or flight” response where the defendant’s state-of-mind was relevant to establish “the reasonableness of the use of force in self-defense.” In State v. Mizell, 773 So. 2d 618, 621 (Fla. 1st DCA 2000), the court found that evidence of the defendant’s post-traumatic stress disorder was “relevant on the question of self-defense.” In State v. Hickson, 630 So. 2d 172 (Fla. 1993), the supreme court found that ex

2019See Tsavaris v. Scruggs, 360 So. 2d 745, 747 (Fla. 1977) (appropriate procedure to challenge a trial court’s authority to continue prosecution is through a petition for writ of prohibition); Rosario v. State, 165 So. 3d 852, 854-55 (Fla. 1st DCA 2015) (Because a writ of prohibition stops the trial court from 6 continuing to prosecute a defendant who should be immune from prosecution, it is the preferred method to challenge a denial of motion to dismiss that has occurred after or without an evidentiary hearing.); Little v. State, 111 So. 3d 214 , 216 n.1 (Fla. 2d DCA 2013) (petition for writ of

2019See Tsavaris v. Scruggs, 360 So. 2d 745, 747 (Fla. 1977) (appropriate procedure to challenge a trial court’s authority to continue prosecution is through a petition for writ of prohibition); Rosario v. State, 165 So. 3d 852, 854-55 (Fla. 1st DCA 2015) (Because a writ of prohibition stops the trial court from 6 continuing to prosecute a defendant who should be immune from prosecution, it is the preferred method to challenge a denial of motion to dismiss that has occurred after or without an evidentiary hearing.); Little v. State, 111 So. 3d 214 , 216 n.1 (Fla. 2d DCA 2013) (petition for writ of