inaccurate and misleading instruction in Florida

2006In Thomas , we held that, "An incorrect jury instruction *1165 on the defense of justifiable use of deadly and non-deadly force constitutes fundamental error if there is a reasonable possibility that the instruction may have led to the conviction." Thomas , at 253. [1] The Fourth District noted that the circumstances in Rich were similar to those in Giles (in Giles , self-defense was his sole defense), and "that fundamental error results where an inaccurate and misleading instruction negates a defendant's only defense." Rich, 858 So.2d at 1211 (citing Davis v. State, 804 So.2d 400, 404 (Fla. 4

2002See Davis v. State, 804 So.2d 400, 404 (Fla. 4th DCA 2001)(recognizing that it is fundamental error to give an inaccurate and misleading instruction where the effect of that instruction is to negate a defendant's only defense); Harris v. State, 570 So.2d 397, 399 (Fla. 3d DCA 1990)(recognizing it to be fundamental that trial court should give a complete and accurate instruction so as not to negate the defendant's theory of defense).

2006Carter, 889 So.2d at 939 (citations omitted) (emphasis added); see Carter v. State, 469 So.2d 194, 196 (Fla. 2d DCA 1985) ("where, as here, a trial judge gives an instruction that is an incorrect statement of the law and necessarily misleading to the jury, and the effect of that instruction is to negate the defendant's only defense, it is fundamental error . . . reviewable in the complete absence of a request or objection"); Dunnaway v. State, 883 So.2d 876, 879 (Fla. 4th DCA 2004) ("fundamental error results where an inaccurate and misleading instruction negates a defendant's only defense").

2005See Dunnaway v. State, 883 So.2d 876 (Fla. 4th DCA 2004) ("[F]undamental error results where an inaccurate and misleading instruction negates a defendant's only defense.").

2006Weekly D1657 , 2005 WL 1554597 (Fla. 2d DCA July 6, 2005)("Error of this type has been determined to be fundamental error, and courts have reversed even without an objection by the defense. `Fundamental error exists where an inaccurate and misleading instruction negates the defendant's only defense.'") (quoting Carter v. State, 889 So.2d 937, 939 (Fla. 5th DCA 2004); Sloss v. State, 30 Fla. L.

2006Carter, 889 So.2d at 939 (citations omitted) (emphasis added); see Carter v. State, 469 So.2d 194, 196 (Fla. 2d DCA 1985) ("where, as here, a trial judge gives an instruction that is an incorrect statement of the law and necessarily misleading to the jury, and the effect of that instruction is to negate the defendant's only defense, it is fundamental error . . . reviewable in the complete absence of a request or objection"); Dunnaway v. State, 883 So.2d 876, 879 (Fla. 4th DCA 2004) ("fundamental error results where an inaccurate and misleading instruction negates a defendant's only defense").

2006Carter, 889 So.2d at 939 (citations omitted) (emphasis added); see Carter v. State, 469 So.2d 194, 196 (Fla. 2d DCA 1985) ("where, as here, a trial judge gives an instruction that is an incorrect statement of the law and necessarily misleading to the jury, and the effect of that instruction is to negate the defendant's only defense, it is fundamental error . . . reviewable in the complete absence of a request or objection"); Dunnaway v. State, 883 So.2d 876, 879 (Fla. 4th DCA 2004) ("fundamental error results where an inaccurate and misleading instruction negates a defendant's only defense").

2006Carter, 889 So.2d at 939 (citations omitted) (emphasis added); see Carter v. State, 469 So.2d 194, 196 (Fla. 2d DCA 1985) ("where, as here, a trial judge gives an instruction that is an incorrect statement of the law and necessarily misleading to the jury, and the effect of that instruction is to negate the defendant's only defense, it is fundamental error . . . reviewable in the complete absence of a request or objection"); Dunnaway v. State, 883 So.2d 876, 879 (Fla. 4th DCA 2004) ("fundamental error results where an inaccurate and misleading instruction negates a defendant's only defense").

2006The following cases decided since Giles and Rich , listed in the order in which they were decided, all concluded that either fundamental or reversible error was committed when the instant instruction operated to negate the defendant's sole defense: Barnes v. State, 868 So.2d 606, 607-08 (Fla. 1st DCA 2004)(instruction given over defense objection not harmless error when the effect of the instruction negated the defendant's only defense); Zuniga v. State, 869 So.2d 1239, 1240 (Fla. 2d DCA 2004)(fundamental error when the only disputed issue at trial was whether Zuniga acted in self-defense); Du

2006In addition, we have held that fundamental error results where an inaccurate and misleading instruction negates a defendant's only defense.") (citations omitted); Zuniga v. State, 869 So.2d 1239, 1240 (Fla. 2d DCA 2004)("Although Zuniga did not raise this issue at trial, we conclude that the erroneous instruction was fundamental error in this case.

2006The following cases decided since Giles and Rich , listed in the order in which they were decided, all concluded that either fundamental or reversible error was committed when the instant instruction operated to negate the defendant's sole defense: Barnes v. State, 868 So.2d 606, 607-08 (Fla. 1st DCA 2004)(instruction given over defense objection not harmless error when the effect of the instruction negated the defendant's only defense); Zuniga v. State, 869 So.2d 1239, 1240 (Fla. 2d DCA 2004)(fundamental error when the only disputed issue at trial was whether Zuniga acted in self-defense); Du

2006The following cases decided since Giles and Rich , listed in the order in which they were decided, all concluded that either fundamental or reversible error was committed when the instant instruction operated to negate the defendant's sole defense: Barnes v. State, 868 So.2d 606, 607-08 (Fla. 1st DCA 2004)(instruction given over defense objection not harmless error when the effect of the instruction negated the defendant's only defense); Zuniga v. State, 869 So.2d 1239, 1240 (Fla. 2d DCA 2004)(fundamental error when the only disputed issue at trial was whether Zuniga acted in self-defense); Du

2006The following cases decided since Giles and Rich , listed in the order in which they were decided, all concluded that either fundamental or reversible error was committed when the instant instruction operated to negate the defendant's sole defense: Barnes v. State, 868 So.2d 606, 607-08 (Fla. 1st DCA 2004)(instruction given over defense objection not harmless error when the effect of the instruction negated the defendant's only defense); Zuniga v. State, 869 So.2d 1239, 1240 (Fla. 2d DCA 2004)(fundamental error when the only disputed issue at trial was whether Zuniga acted in self-defense); Du

2006In Thomas , we held that, "An incorrect jury instruction *1165 on the defense of justifiable use of deadly and non-deadly force constitutes fundamental error if there is a reasonable possibility that the instruction may have led to the conviction." Thomas , at 253. [1] The Fourth District noted that the circumstances in Rich were similar to those in Giles (in Giles , self-defense was his sole defense), and "that fundamental error results where an inaccurate and misleading instruction negates a defendant's only defense." Rich, 858 So.2d at 1211 (citing Davis v. State, 804 So.2d 400, 404 (Fla. 4

2006The following cases decided since Giles and Rich , listed in the order in which they were decided, all concluded that either fundamental or reversible error was committed when the instant instruction operated to negate the defendant's sole defense: Barnes v. State, 868 So.2d 606, 607-08 (Fla. 1st DCA 2004)(instruction given over defense objection not harmless error when the effect of the instruction negated the defendant's only defense); Zuniga v. State, 869 So.2d 1239, 1240 (Fla. 2d DCA 2004)(fundamental error when the only disputed issue at trial was whether Zuniga acted in self-defense); Du

2003Reed, 837 So.2d at 369 (stating that irrespective of whether the evidence of guilt is overwhelming or whether the prosecutor has or has not made inaccurate instruction a feature of the trial, it is fundamental error if inaccurately defined element is disputed at trial and inaccurate definition is pertinent or material to what jury must consider in order to convict); Mosely v. State, 682 So.2d 605 (Fla. 1st DCA 1996) (finding fundamental error where jury instruction was not simply misleading, but permitted defendant to be convicted of non-existent crime); Ward v. State, 655 So.2d 1290 (Fla. 5th

2002See Davis v. State, 804 So.2d 400, 404 (Fla. 4th DCA 2001)(recognizing that it is fundamental error to give an inaccurate and misleading instruction where the effect of that instruction is to negate a defendant's only defense); Harris v. State, 570 So.2d 397, 399 (Fla. 3d DCA 1990)(recognizing it to be fundamental that trial court should give a complete and accurate instruction so as not to negate the defendant's theory of defense).

2001See Sigler v. State, 590 So.2d 18, 20 (Fla. 4th DCA 1991); Carter v. State, 469 So.2d 194, 196 (Fla. 2nd DCA 1985).