affirmative defense in Florida

2026"Where the challenged jury instruction involves an affirmative defense, . . . fundamental error only occurs where a jury instruction is 'so flawed as to deprive defendants claiming the defense . . . of a fair trial.' " Id. at 455 (quoting Smith v. State, 521 So. 2d 106, 108 (Fla. 1988)).

2017“Where the challenged jury instruction involves an affirmative defense, as opposed to an element of the crime, fundamental error only occurs where a jury instruction is ‘so flawed as to deprive defendants claiming the defense ... of a fair trial.’” Martinez, 981 So.2d at 455 (quoting Smith v. State, 521 So.2d 106, 108 (Fla. 1988)); see also Woods v. State, 95 So.3d 925, 927 (Fla. 5th DCA 2012).

2026"Where the challenged jury instruction involves an affirmative defense, . . . fundamental error only occurs where a jury instruction is 'so flawed as to deprive defendants claiming the defense . . . of a fair trial.' " Id. at 455 (quoting Smith v. State, 521 So. 2d 106, 108 (Fla. 1988)).

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.

2020Co. Americas, 83 So. 3d 893, 895 (Fla. 4th DCA 2012) (“We have previously explained that lack of standing is an affirmative defense that must be raised by the defendant and the failure to raise it generally results in waiver.”); Kissman v. Panizzi, 891 So. 2d 1147, 1150 (Fla. 4th DCA 2005) (“[T]he sellers waived the issue of the buyer’s lack of standing, because they did not raise the issue until closing argument.”).

2016Accord Dage, 95 So.3d at 1023 (“[L]ack of standing is,an affirmative defense that must be raised by the defendant (quoting Phadael v. Deutsche Bank Trust Co. Ams., 83 So.3d 893, 895 (Fla. 4th DCA 2012))); Jaffer, 155 So.3d at 1202 .(“We have repeatedly held that standing is an affirmative defense.,..”).

2016Moreover, appellant’s reliance on Hicks v. State, 407 So.2d 252 (Fla. 5th DCA 1981), is completely without merit, as the case was quashed in State v. Hicks, 421 So.2d 510, 510-11 (Fla.1982) (holding that consent to entry is an affirmative defense and non-consent is not an element of burglary).

2013See State v. Hicks, 421 So.2d 510, 511 (Fla.1982) (holding that consent or license to enter is an affirmative defense, and that “nonconsent” to enter was not an essential element of burglary).

2026Co., 62 So. 3d 1086, 1096 (Fla. 2010) (“An affirmative defense is an assertion of facts or law by the defendant that, if true, would avoid the action and the plaintiff is not bound to prove that the affirmative defense does not exist.”); Katz v. Riemer, 305 So. 3d 663 , 667 (Fla. 3d DCA 2020) (“[A]n affirmative defense is any matter that avoids the action and that the defendant must affirmatively establish.”) (citation omitted).

2025Co., 62 So. 3d 1086, 1096 (Fla. 2010) (“The defendant has the burden of proving an affirmative defense.”).

2025See McKaughan, 668 So. 2d at 976, 979 (characterizing affirmative defense of NICA exclusivity as a jurisdictional bar to medical malpractice action and applicability of Mandico to analysis); cf. Mandico, 605 So. 2d at 854 (“The assertion that the plaintiff's exclusive remedy is under the workers’ compensation law is an affirmative defense, and its validity can only be determined in the course of litigation.”).

2024See Mandico v. Taos Constr., Inc., 605 So. 2d 850, 854 (Fla. 1992) (“A person has a right to file a personal injury action in circuit court, and the court has jurisdiction to entertain the suit.”); id. (explaining, in the context of the workers’ compensation law, how the assertion that a plaintiff’s exclusive remedy is through an administrative regime “is an affirmative defense, and its validity can only be determined in the course of litigation”); Fla. Birth-Related Neurological Injury Comp.

2024See Jojo’s Clubhouse, Inc. v. DBR Asset Mgmt., Inc., 860 So. 2d 503, 504 (Fla. 4th DCA 2003) (“A motion for set-off is an affirmative defense.”); Udell, 950 So. 2d at 530 (“[Appellee] failed to plead setoff, or rental value offset, in his Answer, Affirmative Defenses, and Counter-Petition, or in any other pleading or motion.

2021P. 1.110(d); Heartwood 2, LLC v. Dori, 208 So. 3d 817, 821 (Fla. 3d DCA 2017); S. Mgmt. & Dev., L.P. v. Gardner, 992 So. 2d 919, 920 (Fla. 4th DCA 2008); see also Felgenhauer v. Bonds, 891 So. 2d 1043, 1045 (Fla. 2d DCA 2004) (noting that in contrast to a contract action, in tort actions set-off is not an affirmative defense to be considered by the jury but is a determination regarding damages to be made by the court after the verdict is rendered); Jojo's Clubhouse, Inc. v. DBR Asset Mgmt., Inc., 860 So. 2d 503, 504 (Fla. 4th DCA 2003) (citations omitted).

2018See Mederos v. State, 102 So. 3d 7, 11 (Fla. 1st DCA 2012).

2018See Mederos v. State , 102 So.3d 7 , 11 (Fla. 1st DCA 2012).

2025Cf. Nash v. Wells Fargo Guard Servs., Inc., 678 So. 2d 1262, 1265 (Fla. 1996) (concluding that appellee waived defense that noneconomic damages should be apportioned to a proposed Fabre defendant where appellee's answer did not include an affirmative defense that the proposed Fabre defendant's negligence contributed to the plaintiff's injuries, where the appellee did not raise the defense during a pretrial conference, and where the appellee asserted throughout the trial that the proposed Fabre defendant's negligence was not at issue); Am.

2016If these requirements are met, then the non-party defendant may be placed on the verdict form and the jury may consider and allocate the percentage of fault attributable to the nonparty defendant. “[I]n order to include a nonparty on the verdict form pursuant to Fabre, the defendant must plead as an affirmative defense the negligence of the nonparty and specifically identify the nonparty.” Nash v. Wells Fargo Guard Servs., Inc., 678 So.2d 1262, 1264 (1996); see also Loureiro v. Pools by Greg, Inc., 698 So.2d 1262, 1263 (Fla. 4th DCA 1997) (holding that the issue of a non-party’s liability was

2019Defense of another, much like self-defense, is “an affirmative defense that has the effect of legally excusing the defendant from an act that would otherwise be a criminal offense.” Mosansky v. State, 33 So. 3d 756, 758 (Fla. 1st DCA 2010); see also Keyes v. State, 804 So. 2d 373, 375 (Fla. 4th DCA 2001) (recognizing that claims of self-defense and defense of another both involve an admission and avoidance).

2014A. “[S]elf-defense is ... an affirmative defense that has the effect of legally excusing the defendant from an act that would otherwise be a criminal offense.” Mosansky v. State, 33 So.3d 756, 758 (Fla. 1st DCA 2010).

2025See generally State v. Green, 400 So. 2d 1322 , 1323 n.1 (Fla. 5th DCA 1981) (“A valid defense can either establish an affirmative defense or negate a prima facie element.”); State v. Cohen, 568 So. 2d 49 , 51–52 (Fla. 1990) (“An ‘affirmative defense’ is any defense that assumes the complaint or charges to be correct but raises other facts that, if true, would establish a valid excuse or justification or a right to engage in the conduct in question.

2025This is so, Stafford explains, because the arrest affidavit notes that Stafford is homeless but fails to then note that the arresting officer offered shelter and 4 that Stafford declined the offer.1 The State counters that an “offer of shelter be[ing] made and refused is an affirmative defense, and not an element of the offense.” And, in general, “[a]n affirmative defense does not concern itself with the elements of the offense at all; it concedes them.” State v. Cohen, 568 So. 2d 49 , 51–52 (Fla. 1990).

2012In Van Meter v. Kelsey, 91 So.2d 327, 330-31 (Fla.1956), the Florida Supreme Court set forth the following necessary elements to establish the affirmative defense of laches: (1) “there must be conduct on the part of the defendant, or on the part of one under whom he claims, giving rise to the situation of which complaint is made”; (2) “the plaintiff, having had knowledge or notice of the defendants’ conduct, and having been afforded the opportunity to institute suit, is guilty of not asserting his rights by suit”; (3) “lack of knowledge on the part of the defendant that plaintiff will assert t

2007Mr. Dorta-Duque testified similarly and stated he did not believe others were in a position to timely file a jurisdictionally sufficient petition for writ of certiorari and that he believed they would file a notice of appeal and so the settlement agreement was drafted to require more than the filing of a notice of appeal in order to excuse Lennar from performing. [9] It is noteworthy that only a weekend and a legal holiday separated the day on which the settlement agreement was reached (Friday) and the expiration of the appeal period. [10] See Nelson v. City of Sneads, Fl., 921 So.2d 760 (Fla.

2005In addition, this Court has emphasized that "voluntary intoxication is an affirmative defense and that the defendant must come forward with evidence of intoxication at the time of the offense sufficient to establish that he was unable to form the intent necessary to commit the crime charged." Linehan v. State, 476 So.2d 1262, 1264 (Fla.1985).

2004We explained in State v. Bias, 653 So.2d 380 (Fla.1995), that such limitations are required "to ensure that the defense of voluntary intoxication is not utilized as a label for what in reality is a defense based upon the doctrine of diminished capacity." Id. at 383 ; see also Linehan v. State, 476 So.2d 1262, 1264 (Fla.1985) ("We emphasize that voluntary intoxication is an affirmative defense and that the defendant must come forward with evidence of intoxication at the time of the offense sufficient to establish that he was unable to form the intent necessary to commit the crime charged.").

2025Failure to give an instruction unnecessary to prove an essential element of the crime charged is not fundamental error.” (citation omitted)); Mohammed v. State, 309 So. 3d 269 , 274 (Fla. 5th DCA 2020) (“Sochor controls this case, and the trial court could not fundamentally err by failing to instruct the jury on an unrequested defense instruction.”); see generally State v. Adkins, 96 So. 3d 412, 416 (Fla. 2012) (explaining that section 893.101, Florida Statutes, “expressly eliminates knowledge of the illicit nature of the controlled substance as an element of controlled substance offenses and

2024A defendant is entitled to this affirmative defense instruction when he contends his “admittedly illegal conduct should not be punished.” State v. Adkins, 96 So. 3d 412, 423 (Fla. 2012).

2019See Hess v. Philip Morris USA, Inc., 175 So. 3d 687, 695 (Fla. 2015) ("The defendant has the burden to prove an affirmative defense." (citing Hough v. Menses, 95 So. 2d 410, 412 (Fla. 1957))); Nunez v. Alford, 117 So. 2d 208, 210 (Fla. 2d DCA 1960). -5- Substantively, "[s]tanding is . . . that sufficient interest in the outcome of litigation which will warrant the court's entertaining it." Progressive Express Ins.

2009See Hough, v. Menses, 95 So.2d 410 (Fla.1957); Henderson, 340 So.2d at 1206 (holding that burden of proof is on the vendor where a party seeks to establish an affirmative defense to specific performance).

2018However, defense counsel did not request, and the court did not give, the instruction on the parental-discipline affirmative defense, which states: “It is not a crime for a parent of a child to impose reasonable physical discipline on a child for misbehavior under the circumstances even though physical injury resulted from the discipline.” Id.; see also Raford v. State, 828 So. 2d 1012, 1020 (Fla. 2002) (rejecting argument that child abuse by a parent is not a crime, but explaining that “a parent may assert as an affirmative defense his or her parental right to administer ‘reasonable’ or ‘none

2013See Raford v. State, 828 So.2d 1012 (Fla.2002). § 827.03 Fla. Stat. and case law are silent as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the standard for the bur- den of persuasion.

2017Mgmt., Inc., 351 So.2d 364, 364-65 (Fla. 4th DCA 1977) (citations omitted); see also Fla. R.

2015Mgmt., Inc., 351 So.2d 364, 364-65 (Fla. 4th DCA 1977) (citations omitted); see also Fla. R.

2025"An avoidance is an allegation of additional facts intended to overcome an affirmative defense." Buss Aluminum Prods., Inc. v. Crown Window Co., 651 So. 2d 694, 695 (Fla. 2d DCA 1995) (citing Kitchen v. Kitchen, 404 So. 2d 203 (Fla. 2d DCA 1981)).

2018P. 1.100(a); see, e.g., Reno v. Adventist Health Sys./Sun-Belt, Inc., 516 So. 2d 63, 64-65 (Fla. 2d DCA 1987) ("[A] reply to an affirmative defense is necessary only in order to entitle the plaintiff to, in effect, prove an affirmative defense to an affirmative defense."); see also Kitchen v. Kitchen, 404 So. 2d 203, 205 (Fla. 2d DCA 1981) ("[I]t is only when 'new matter' is sought to be asserted to avoid the affirmative defense that a reply is required.

2018Co., 105 So. 3d 602, 607 (Fla. 4th DCA 2013) (“By failing to properly plead lack of standing and ‘fraud,’ the borrowers waived their right to assert these affirmative defenses in response to First-Citizens’ summary judgment motion.”); Langford v. McCormick, 552 So. 2d 964, 967 (Fla. 1st DCA 1989) (“Appellee did not plead undue influence as an affirmative defense at any point in the proceedings.

2018Co., 105 So. 3d 602, 607 (Fla. 4th DCA 2013) (“By failing to properly plead lack of standing and ‘fraud,’ the borrowers waived their right to assert these affirmative defenses in response to First-Citizens’ summary judgment motion.”); Langford v. McCormick, 552 So. 2d 964, 967 (Fla. 1st DCA 1989) (“Appellee did not plead undue influence as an affirmative defense at any point in the proceedings.

2012“If the court is required to consider matters outside the four corners of the complaint, then the cause is not subject to dismissal on the basis of the affirmative defense.” Id. (“The plaintiffs complaint does not clearly show the applicability of [election of remedies] defense.

2006Ctr., 687 So.2d 258, 261, 263 (Fla. 1st DCA 1996) (invoking en banc jurisdiction to consider propriety of grant of motion to dismiss “where the affirmative defense does not appear on the face of the prior pleading,” clarify immunity rule based upon whether fellow employees “were not engaged in unrelated works,” and explain exception to fellow employee immunity for acts of willful and wanton disregard or gross negligence); Slay v. Singletary, 676 So.2d 456, 457 (Fla. 1st DCA 1996) (“We now expressly align ourselves with the decision in Smith [v. State, 659 So.2d 1222 (Fla. 4th DCA 1995),] and t

1996Then, in the seminal case of Blackburn , the supreme court held that the affirmative defense of implied assumption of risk is merged into the defense of contributory negligence and the principles of comparative negligence enunciated in Hoffman v. Jones, [ 280 So.2d 431 (Fla.1973) ], shall apply in all cases where such defense is asserted. 348 So.2d at 293 .

1994Subsequently, in Blackburn v. Dorta, 348 So.2d 287, 293 (Fla. 1977), we held that the affirmative defense of implied assumption of risk merges into the defense of contributory negligence and the principles of comparative negligence apply in all cases where the defense is asserted.

2025On review, the supreme court approved the dismissal and held, in response to a certified question, that the Plan statutes do “not vest exclusive jurisdiction in an administrative hearing officer to determine if an injury suffered by a newborn infant is covered by the plan when the plan’s provisions are raised as an affirmative defense to a medical malpractice action in circuit court.” McKaughan, 668 So. 2d at 975 (emphasis supplied).

2025Pulling this all together, the reader can see that the supreme court relied on a close textual treatment of the four statutory provisions just mentioned, sections 766.301(2), 766.302(3), 766.304, and 766.305(1)—and its conclusion that these provisions limit the Plan and the ALJ’s authority thereunder to “claims” by parents affirmatively seeking compensation—to hold that an administrative hearing officer/ALJ does not have “exclusive jurisdiction . . . to determine the nature of an injury suffered by a new-born infant when a medical malpractice action is filed and a 14 defendant health care prov