forcible felony exception in Florida

2026In order to avoid this "circular logic"—which "would most probably confuse jurors because the apparent result is that the instruction precludes a finding of self-defense and amounts to a directed verdict on the affirmative defense"—"an independent forcible felony is required for the forcible-felony instruction to apply." See id. at 453–54.

2026He argues that the trial court erred by giving a forcible felony instruction, which told the jury that "[t]he use of deadly force is not justified if you find the defendant was attempting to commit, committing[,] or escaping after the commission of felony murder or manslaughter."2 Our supreme court held in Martinez v. State, 981 So. 2d 449, 457 (Fla. 2008), that "it is error for a trial court to read the forcible- felony instruction to the jury where the defendant is not charged with an independent forcible felony." Because there was only one charge against Mr. Higbee—and because he was not ch

2025Stated differently, the forcible felony exception to self-defense applies only when 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.” See Santiago v. State, 88 So. 3d 1020, 1022 (Fla. 2d DCA 2012) (quoting Giles v. State, 831 So. 2d 1263 , 1265–66 (Fla. 4th DCA 2002)).

2019Although there are no Florida cases analyzing the forcible-felony exception in the context of defense of another, cases analyzing the exception in the context of self-defense make clear that “the plain language of section 776.041 indicates that it is applicable only under circumstances where the person claiming self-defense is engaged in another, independent ‘forcible felony’ at the time.” Giles v. State, 831 So. 2d 1263, 1265 (Fla. 4th DCA 2002) (emphasis added); see also Martinez v. State, 981 So. 2d 449, 457 (Fla. 2008) (“[I]t is error for a trial court to read the forcible-felony instructi

2007"More specifically, the forcible felony instruction is given in situations where the accused 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." Id. (quoting Cleveland v. State, 887 So.2d 362, 363 (Fla. 5th DCA 2004)); accord Carter v. State, 889 So.2d 937, 939 (Fla. 5th DCA 2004).

2007But, again, the rule that we have erroneously created mandates that the forcible felony instruction be given 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." Hawk v. State, 902 So.2d 331, 331 (Fla. 5th DCA 2005) (quoting Cleveland v. State, 887 So.2d 362, 363 (Fla. 5th DCA 2004)).

2012Third, 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).

2006The forcible felony exception to self defense is predicated "on section 776.041(1) of the Florida Statutes which is applicable only in circumstances where the person claiming self-defense is engaged in another independent forcible felony at the time." Cleveland v. State, 887 So.2d 362, 363 (Fla. 5th DCA 2004) (citing Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002), Zuniga v. State, 869 So.2d 1239 (Fla. 2d DCA 2004), and Barnes v. State, 868 So.2d 606 (Fla. 1st DCA 2004)).

2026In other words, "the forcible felony exception to self-defense applies only when 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.' " Smith v. State, 417 So. 3d 503 , 507 (Fla. 5th DCA 2025) (quoting Santiago v. State, 88 So. 3d 1020, 1022 (Fla. 2d DCA 2012)).

2025Stated differently, the forcible felony exception to self-defense applies only when 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.” See Santiago v. State, 88 So. 3d 1020, 1022 (Fla. 2d DCA 2012) (quoting Giles v. State, 831 So. 2d 1263 , 1265–66 (Fla. 4th DCA 2002)).

2008See id. at 1014 ; see also Barnes v. State, 969 So.2d 1117, 1118 (Fla. 5th DCA 2007) (concluding that "[t]he mere fact that the self-defense claim borders absurdity is irrelevant" in determining whether fundamental error occurred); York v. State, 932 So.2d 413, 416 (Fla. 2d DCA 2006) (holding that fundamental error occurred where the defendant's self-defense claim was supported by testimony and "the disputed issue in the case was who fired first"); Fair v. State, 902 So.2d 965, 965-66 (Fla. 4th DCA 2005) (holding that fundamental error occurred where "it was the victim who may have instigated

2007See 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).

2006The forcible felony exception to self defense is predicated "on section 776.041(1) of the Florida Statutes which is applicable only in circumstances where the person claiming self-defense is engaged in another independent forcible felony at the time." Cleveland v. State, 887 So.2d 362, 363 (Fla. 5th DCA 2004) (citing Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002), Zuniga v. State, 869 So.2d 1239 (Fla. 2d DCA 2004), and Barnes v. State, 868 So.2d 606 (Fla. 1st DCA 2004)).

2006"More specifically, the forcible felony instruction is given in situations where the accused 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." Id.

2026"Otherwise, the instruction would be ' "circular and confusing to the jury" because it improperly instructs the jury that the very act that the 5 defendant seeks to justify as an act of self-defense prevents the same act from being an act of self-defense.' " Id. (quoting Smith v. State, 933 So. 2d 1275 , 1276–77 (Fla. 2d DCA 2006)).

2010An 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 *355 for which he claims self-defense.” Wilson v. State, 944 So.2d 1244, 1245 (Fla. 2d DCA 2006) (quoting Smith v. State, 933 So.2d 1275, 1276 (Fla. 2d DCA 2006)); see also Martinez v. State, 981 So.2d 449, 454 (Fla.2008).

2019See Smith, 76 So. 3d at 387 (holding that an instruction which “gutted” the defendant’s key defense was so erroneous as to affect the verdict); Vowels v. State, 32 So. 3d 720, 721 (Fla. 5th DCA 2010) (erroneous forcible-felony instruction “led the jury to believe that [the defendant’s] theory of self-defense was not available to him” and vitiated the fairness of the trial). 3 The State nonetheless argues that because section 776.041 provides that the forcible-felony exception applies to the “justification described in the proceeding sections of this chapter,” and because defense of another is

2013See Crimins v. State, 113 So.3d 945 , 2013 WL 461800, at *3 (Fla. 5th DCA 2013) (concluding, on direct appeal, that the trial court committed fundamental error by giving the forcible felony exception to the self-defense instruction where there was no evidence that the defendant was engaged in a separate forcible felony, the defendant and the victim had given conflicting testimony, and the court was unable to conclude “that the evidence of guilt was overwhelming or that the claim of self-defense was extremely weak,” even though the State impeached much of the defendant’s trial testimony); Smith

2007"More specifically, the forcible felony instruction is given in situations where the accused 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." Id. (quoting Cleveland v. State, 887 So.2d 362, 363 (Fla. 5th DCA 2004)); accord Carter v. State, 889 So.2d 937, 939 (Fla. 5th DCA 2004).

2006See Cleveland, 887 So.2d at 363 (concluding that giving the forcible felony instruction where the Defendant was charged with only a single forcible felony was error); Carter v. State, 889 So.2d 937, 939 (Fla. 5th DCA 2004) (same); Barnes 868 So.2d at 607 (same).

2007"More specifically, the forcible felony instruction is given in situations where the accused 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." Id. (quoting Cleveland v. State, 887 So.2d 362, 363 (Fla. 5th DCA 2004)); accord Carter v. State, 889 So.2d 937, 939 (Fla. 5th DCA 2004).

2007But, again, the rule that we have erroneously created mandates that the forcible felony instruction be given 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." Hawk v. State, 902 So.2d 331, 331 (Fla. 5th DCA 2005) (quoting Cleveland v. State, 887 So.2d 362, 363 (Fla. 5th DCA 2004)).

2023The Fourth District explained that the forcible felony exception does not apply when it is claimed that the acts with which the defendant is charged are themselves committed in appropriate self-defense; it does apply, however, “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. at 654 (quoting Shepard v. Crosby, 916 So. 2d 861, 864 (Fla. 4th DCA 2005)).

2023We agree with our sister court that when a defendant charged with multiple crimes claims self-defense as to each offense, the forcible felony instruction is improper “because there is no independent forcible felony available and the instruction negates the defendant’s self-defense claim.” Id. at 654–55.

2015See Martinez v. State, 981 So.2d 449, 454 (Fla.2008) (“In light of the foregoing, we hold that the lower courts have properly concluded that for the forcible-felony instruction to apply, there must be an independent forcible felony other than the one which the defendant claims he or she committed in self-defense.”); Crimins v. State, 113 So.3d 945, 948 (Fla. 5th DCA 2013) (“The forcible felony exception instruction, providing that a claim of self-defense is not available to a defendant who is attempting to commit, committing, or escaping after the commission of a forcible felony, does not appl

2015See Martinez v. State, 981 So.2d 449, 454 (Fla.2008) (“In light of the foregoing, we hold that the lower courts have properly concluded that for the forcible-felony instruction to apply, there must be an independent forcible felony other than the one which the defendant claims he or she committed in self-defense.”); Crimins v. State, 113 So.3d 945, 948 (Fla. 5th DCA 2013) (“The forcible felony exception instruction, providing that a claim of self-defense is not available to a defendant who is attempting to commit, committing, or escaping after the commission of a forcible felony, does not appl

2007See 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).

2007See 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).

2013See Giles v. State, 831 So.2d 1263, 1266 (Fla. 4th DCA 2002); Rich v. State, 858 So.2d 1210, 1210 (Fla. 4th DCA 2003); Hickson v. State, 873 So.2d 474, 475 (Fla. 4th DCA 2004).

2013See, e.g., Dunnaway v. State, 883 So.2d 876 (Fla. 4th DCA 2004); Rich v. State, 858 So.2d 1210 (Fla. 4th DCA 2003).

2008See id. [1] The Third District examined the circumstances of Martinez's case and concluded that the erroneous reading of the forcible-felony instruction did not constitute fundamental error.

2007In support of its argument on this issue, the State relies on the Third District's decision in Martinez v. State, 933 So.2d 1155 (Fla. 3d DCA 2006), in which the court concluded that giving the forcible felony exception instruction did not constitute fundamental error.

2019See Smith, 76 So. 3d at 387 (holding that an instruction which “gutted” the defendant’s key defense was so erroneous as to affect the verdict); Vowels v. State, 32 So. 3d 720, 721 (Fla. 5th DCA 2010) (erroneous forcible-felony instruction “led the jury to believe that [the defendant’s] theory of self-defense was not available to him” and vitiated the fairness of the trial). 3 The State nonetheless argues that because section 776.041 provides that the forcible-felony exception applies to the “justification described in the proceeding sections of this chapter,” and because defense of another is

2013See Crimins v. State, 113 So.3d 945 , 2013 WL 461800, at *3 (Fla. 5th DCA 2013) (concluding, on direct appeal, that the trial court committed fundamental error by giving the forcible felony exception to the self-defense instruction where there was no evidence that the defendant was engaged in a separate forcible felony, the defendant and the victim had given conflicting testimony, and the court was unable to conclude “that the evidence of guilt was overwhelming or that the claim of self-defense was extremely weak,” even though the State impeached much of the defendant’s trial testimony); Smith

2008See Grier v. State, 928 So.2d 368 (Fla. 3d DCA 2006); Bevan v. State, 908 So.2d 524 (Fla. 2d DCA 2005); Hardy v. State, 901 So.2d 985 (Fla. 4th DCA 2005); Estevez v. State, 901 So.2d 989 (Fla. 4th DCA 2005); Williams v. State, 901 So.2d 899 (Fla. 4th DCA 2005); Dunnaway v. State, 883 So.2d 876 (Fla. 4th DCA 2004); Carter v. State, 889 So.2d 937 (Fla. 5th DCA 2004); Zuniga v. State, 869 So.2d 1239 (Fla. 2d DCA 2004); Barnes v. State, 868 So.2d 606 (Fla. 1st DCA 2004); Rich v. State, 858 So.2d 1210 (Fla. 4th DCA 2003); Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002).

2008See Martinez, 933 So.2d at 1166 ("In applying [the standards established by the Supreme Court of Florida for determining fundamental error] the appellate courts consistently have found fundamental error in those cases where the erroneous instruction negates the defendants sole defense to the crime charged."); see also Grier, 928 So.2d at 370 .

2013See, e.g., Dunnaway v. State, 883 So.2d 876 (Fla. 4th DCA 2004); Rich v. State, 858 So.2d 1210 (Fla. 4th DCA 2003).

2009See, e.g., Dunnaway v. State, 883 So.2d 876 (Fla. 4th DCA 2004); Rich v. State, 858 So.2d 1210 (Fla. 4th DCA 2003).

2010Sloss v. State, 965 So.2d 1204 (Fla. 5th DCA 2007), quashed, State v. Sloss, 1 So.3d 164 (Fla.2009).

2008Sloss v. State, 965 So.2d 1204, 1206 (Fla. 5th DCA 2007): The question turns on whether the defendant claims that he acted against both victims in self-defense; if so, the forcible felony instruction constitutes fundamental error.

2025See, e.g., Redding v. State, 41 So. 3d 353, 355 (Fla. 2d DCA 2010).

2012Third, 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).

2025See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986) (explaining that an error is harmless if the State can prove beyond a reasonable doubt “that there is no reasonable possibility that the error contributed to the verdict”).

2015See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986) (“The focus [of a harmless error analysis] is on the effect of the error on the trier-of-fact.

2023See Woodsmall v. State, 164 So. 3d 696, 698 (Fla. 5th DCA 2015) (citing Martinez v. State, 981 So. 2d 449, 454 (Fla. 2008)). “[I]f a defendant claims self-defense as to every forcible felony with which he is charged, there may not be a separately charged crime that can support the instruction.” Berrane v. State, 337 So. 3d 464 , 466 (Fla. 1st DCA 2022); see also Furney v. State, 115 So. 3d 1095, 1098 (Fla. 4th DCA 2013); Santiago v. State, 88 So. 3d 1020, 1023 (Fla. 2d DCA 2012); In Gregory, the defendant was charged with robbery with a deadly weapon and aggravated battery, both of which he cl

2014See, e.g., id. at 455-57 (erroneous reading of forcible-felony instruction did not deprive defendant of a fair trial because self-defense was not defendant’s only defense strategy and defendant’s self-defense claim was “extremely weak”); Furney, 115 So.3d at 1097-98 (erroneous reading of forcible-felony instruction constituted fundamental error because defendant’s sole defense as to each of his charges was self-defense and the state relied on the forcible-felony exception during closing); Clark v. State, 23 So.3d 1213, 1215 (Fla. 4th DCA 2009) (“In reviewing the issue after Martinez, this cour

2018See In re Standard Jury Instructions in Criminal Cases-Report 2014-06, 191 So. 3d 411, 412 (Fla. 2016).

2018See In re Standard Jury Instructions in Criminal Cases-Report 2014-06 , 191 So.3d 411 , 412 (Fla. 2016).

2014See, e.g., id. at 455-57 (erroneous reading of forcible-felony instruction did not deprive defendant of a fair trial because self-defense was not defendant’s only defense strategy and defendant’s self-defense claim was “extremely weak”); Furney, 115 So.3d at 1097-98 (erroneous reading of forcible-felony instruction constituted fundamental error because defendant’s sole defense as to each of his charges was self-defense and the state relied on the forcible-felony exception during closing); Clark v. State, 23 So.3d 1213, 1215 (Fla. 4th DCA 2009) (“In reviewing the issue after Martinez, this cour

2013In Clark v. State, 23 So.3d 1213, 1214-15 (Fla. 4th DCA 2009), we explained the effect of Martinez : This court once held that erroneously giving the forcible-felony-exception instruction was fundamental error where it was “reasonably possible” that the instruction contributed to the conviction.

2012Third, 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).

2012Third, 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).

2008Indeed, consistent with this case law, in 2006 we approved an amendment to the self-defense jury instruction to specifically provide that the forcible-felony instruction should be given "only if the defendant is charged with more than one forcible felony. " See In re Standard Jury Instructions In Criminal Cases (No.2005-4), 930 So.2d 612, 614 (Fla. 2006) (emphasis supplied).

2008See In re Standard Jury Instructions in Criminal Cases (No.2005-4), 930 So.2d 612 (Fla.2006).

2012Third, 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).

2010Stoute v. State, 987 So.2d 748 (Fla. 4th DCA 2008) and Sipple v. State, 972 So.2d 912 (Fla. 5th DCA 2007) are instructive in discussing the analysis of the “prejudice” prong in the context of a Rule 3.850 motion, where trial counsel failed to object to a forcible felony exception instruction be-' ing given, and self-defense was the defendant’s only theory of innocence.

2023The Fourth District explained that the forcible felony exception does not apply when it is claimed that the acts with which the defendant is charged are themselves committed in appropriate self-defense; it does apply, however, “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. at 654 (quoting Shepard v. Crosby, 916 So. 2d 861, 864 (Fla. 4th DCA 2005)).

2015See Martinez v. State, 981 So.2d 449, 454 (Fla.2008) (“In light of the foregoing, we hold that the lower courts have properly concluded that for the forcible-felony instruction to apply, there must be an independent forcible felony other than the one which the defendant claims he or she committed in self-defense.”); Crimins v. State, 113 So.3d 945, 948 (Fla. 5th DCA 2013) (“The forcible felony exception instruction, providing that a claim of self-defense is not available to a defendant who is attempting to commit, committing, or escaping after the commission of a forcible felony, does not appl

2010Stoute v. State, 987 So.2d 748 (Fla. 4th DCA 2008) and Sipple v. State, 972 So.2d 912 (Fla. 5th DCA 2007) are instructive in discussing the analysis of the “prejudice” prong in the context of a Rule 3.850 motion, where trial counsel failed to object to a forcible felony exception instruction be-' ing given, and self-defense was the defendant’s only theory of innocence.

2010Sipple v. State, 972 So.2d 912, 914 (Fla. 5th DCA 2007) (holding that trial counsel’s performance was deficient where he failed to object to the giving of the forcible-felony instruction or to ask that the offensive part be deleted).