Florida Criminal Law Opinions

STATE OF FLORIDA, Appellant v. MICHAEL ANTHONY COLBERT, Appellee.

CASE NO. 5D07-122

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

November 30, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Orange County, Bob Wattles, Judge.

COUNSEL:   Bill McCollum, Attorney General, Tallahassee, and Brigid E. Collins, Assistant Attorney General, Daytona Beach, for Appellant.

James S. Purdy, Public Defender, and Henry T. Swann, III, Assistant Public Defender, Daytona Beach, for Appellee.

JUDGES:   LAWSON, J. PLEUS, J., concurs. RAINWATER, T., Associate Judge, dissents with opinion.

OPINION BY:   LAWSON

OPINION  

LAWSON, J.

The State appeals from Michael Anthony Colbert’s downward departure sentence pursuant to section 943.0435, Florida Statutes (2006). Finding that the State failed to preserve the issue it now raises for appellate review, we affirm.

Section 924.051(3), Florida Statutes (2006), provides that a “judgment or sentence may be reversed on appeal only when an appellate court determines after review of the complete record that prejudicial error occurred and was properly preserved in the trial court or, if not properly preserved, would constitute fundamental error.” For purposes of this rule, “preserved” means “that an issue, legal argument, or objection to evidence was timely raised before, and ruled on by, the trial court, and that the issue, legal argument, or objection to evidence was sufficiently  [*2]  precise that it fairly appraised the trial court of the relief sought and the grounds therefore.” § 924.051(1)(b), Fla. Stat. (2006).

Consistent with this statute, the Florida Supreme Court has held that proper preservation requires the following three components:

First, a litigant must make a timely, contemporaneous objection. Second, the party must state a legal ground for that objection. Third, “[i]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.”Harrell v. State, 894 So. 2d 935, 940 (Fla. 2005) (emphasis in original) (quoting Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982)); see also Rodriguez v. State, 609 So. 2d 493, 499 (Fla. 1992) (stating that “the specific legal ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal”). “The purpose of this rule is to ‘place[ ] the trial judge on notice that error may have been committed, and provide[ ] him an opportunity to correct it at an early stage of the proceedings.’” Harrell, 894 So. 2d at 940 (quoting Castor v. State, 365 So. 2d 701, 703 (Fla.1978)).

We have  [*3]  reviewed the complete record on appeal. The full extent of the prosecutor’s objection below was her statement that: “Just for the record, obviously the State objects.” It is clear from the transcript provided that some off-record discussions occurred between the parties before Colbert entered his plea, and that these discussions involved some type of factual proffer by Colbert’s attorney relating to the basis for departure found by the trial court. n1 It also appears obvious that all parties understood from these off-record discussions that the trial judge would impose a departure sentence, to which the State would object. After taking Colbert’s plea, the trial judge simply announced that this “will be a downward departure over the State’s objection,” and indicated that the basis for departure was section 921.0026(2)(j), Florida Statutes (allowing a downward departure where “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.”).

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In giving his reason for the departure, the trial court expressly referenced information that “[Colbert’s] counsel has represented.”
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We agree with the State that the record does not contain  [*4]  any evidentiary basis to support the trial court’s finding that this basis for departure was appropriate. However, because the prosecutor failed to make this objection below, the issue was not preserved for appellate review. In so holding, we recognize that a general objection, such as the one made here, can be sufficient to preserve the State’s right to challenge the basis for a downward departure sentence “when the basis for that objection clearly appears from the context,” State v. Roberts, 963 So. 2d 747, 32 Fla. L.Weekly D1510 (Fla. 3d DCA June 20, 2007), or when “it is clear from the hearing transcript that the trial court was aware of the legal errors associated with its ruling” and therefore “had the opportunity to correct it.” State v. Walker, 923 So. 2d 1262, 1265 (Fla. 1st DCA 2006). These exceptions do not apply here.

Because of the off-record proffer and discussions, the State’s general objection could have meant any number of things. The State could have meant exactly what it now argues on appeal: that the court could not depart unless Colbert put his supporting evidence on the record. If that objection had been timely made, Colbert then would have had the opportunity to respond and place  [*5]  any supporting evidence on the record. Perhaps the State had no objection to counsel simply proffering the evidence, but viewed that evidence as insufficient to support a downward departure under section 921.0026(2)(j). Alternatively, the State could have conceded that whatever evidence had been proffered would support a departure, but then objected to the trial court’s decision to exercise his discretion to depart. For all we know, the prosecutor may have agreed, off-record, as to the basis for departure, but indicated that she would still “object for the record.” Given the context of this general objection, we simply cannot tell what legal argument the prosecutor was attempting to make. Therefore, we must affirm. Harrell, 894 So. 2d at 940.

AFFIRMED.

PLEUS, J., concurs.

RAINWATER, T., Associate Judge, dissents with opinion.

DISSENT BY:   RAINWATER

DISSENT  

RAINWATER, T., Associate Judge, dissenting.

I respectfully dissent. While the majority acknowledges the lack of record evidence to support a downward departure in this case, it, nonetheless, affirms the departure sentence because, in its view, the State failed to preserve this issue for appellate review. The majority holds that the State’s objection was not  [*6]  specific enough to apprise the trial court of the basis of the objection. I disagree. In my view, the record demonstrates that the court was aware of the basis of the State’s objection and had an opportunity to correct its error.

An appeal may not be taken from a trial court judgment or order unless a prejudicial error is properly preserved, or the error amounts to fundamental error. See § 924.051(3), Fla. Stat. (2006). To satisfy this preservation requirement, an issue, argument, or objection must be “timely raised before, and ruled on by, the trial court,” and the issue, argument, or objection must have been “sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefore.” § 924.051(1)(b), Fla. Stat. (2006). “The purpose of this rule is to ‘place[ ] the trial judge on notice that error may have been committed, and provide[ ] him an opportunity to correct it at an early stage of the proceedings.’” Harrell v. State, 894 So. 2d 935, 940 (Fla. 2005) (citing Castor v. State, 365 So. 2d 701, 703 (Fla. 1978)).

However, where the basis of the objection is clear from the context, a “general objection” will suffice. State v. Roberts, 963 So. 2d 747 (Fla. 3d DCA 2007)  [*7]  (holding that state’s general objection to downward departure was sufficient where it was clear from context that trial court provided only one reason for departure and validity of that reason was being challenged); State v. Walker, 923 So. 2d 1262, 1265 (Fla. 1st DCA 2006) (”The trial court only provided one reason in support of its downward departure, and the validity of that reason was clearly being challenged by the general objection. The trial court was on notice of its error, and had the opportunity to correct it.”); State v. Jordan, 867 So. 2d 635 (Fla. 5th DCA 2004) (holding statement that “[t]he State doesn’t feel the prongs have been met by the defense” sufficiently preserved objection to downward departure sentence).

The transcript of the plea and sentencing hearing in this case shows that the trial court properly questioned Colbert regarding his understanding of the rights he was giving up and the voluntariness of his plea, then proceeded to sentence him. Without providing either party the opportunity to present evidence, the court sentenced Colbert, as follows:

THE COURT: I find you are intelligent, you understand your rights, you’re making an informed, voluntary waiver  [*8]  of those rights. I will also find based on the information in the court file, probable cause, a factual basis exists for the State to bring the charges, and accept your plea as charged in 06-12673.

All right. Based on that then, we would adjudicate you guilty of the charge of failing to report. We’d sentence you to 180 days Orange County Jail, give you credit for 105 days time served. Additional portion of the sentence would be that you record your correct Florida address within 24 hours of your release, if not prior to your release to the proper authorities.

. . . .

This will be a downward departure over the State’s objection and it’ll be cited as a basis, subsection J. The offense was committed in an unsophisticated manner and noting for the record that he was sentenced in Indiana, apparently was reporting in Indiana, moved to Florida, failed to report, which was a violation of Florida law, now has an outstanding warrant in Indiana, but it is based on the same issue that he moved and failed to report there as well as here. So it is kind of a bubbling issue. So that would be the basis of the downward departure. Okay? Anything else?

[THE STATE]: Just for the record, obviously the State  [*9]  objects, and it is my understanding that you are using subsection J of the Florida statute 921.026 [sic]?

THE COURT: Yes. In conjunction with the fact that this is interstate transfer of location. There could very well be, pursuant to what his counsel has represented, some miscommunication or misunderstanding that he had to report here because it is a different state. So I am kind of taking a factual scenario in conjunction with J as a reason for downward departure.

[THE STATE]: Just for the record, as part of the case packet, the defendant was provided paperwork when he was released from D.O.C. in Indiana which stated that he had seven days to report any change of address specifically. It does not require just merely Indiana, but that he was required to report.

THE COURT: But does it also have the verbiage that says, including any other state or just in the jurisdiction in which he is?

[THE STATE]: It’s not limited to Indiana. It does not have anything beyond that.

THE COURT: Noted for the record . . . .(Emphasis added).

It is clear from the transcript that the court was well aware of the State’s anticipated objection to the departure sentence. When the court announced its sentence, it  [*10]  stated that it was a downward departure “over the state’s objection.” The State responded, “Just for the record, obviously the State objects . . . .” Under the circumstances presented in this case, the State’s general objection was sufficient to place the trial court on notice of the basis for the objection. A more specific objection on this point would have been futile and the law does not require futile acts. Walker, 923 So. 2d at 1265. Thus, contrary to the majority’s view, I would hold that the State’s objection to the downward departure sufficiently preserved the issue for appellate review.

As to the merits, I believe that the trial court erred in entering a departure sentence under the circumstances presented here. Among other things, Florida Rule of Criminal Procedure 3.720 requires that, prior to sentencing, the court must ask the defendant whether any legal cause exists why sentence should not be pronounced and “shall entertain submissions and evidence by the parties that are relevant to the sentence.” Fla. R. Crim. P. 3.720(a) & (b). In the present case, the sentencing court did not entertain “submissions and evidence” from either Colbert or the State. Further, a trial court’s  [*11]  decision to downward depart from a minimum sentence is a two-part process. The court must determine whether a valid legal ground exists and whether there is adequate factual support for that ground. See e.g., Walker, 923 So. 2d at 1264. Here, there was no evidence presented upon which the court could find a factual basis to support a departure sentence.

I would reverse the downward departure sentence. Ordinarily, a departure sentence that is reversed would be remanded with directions to enter sentence within the guidelines. However, in this case, it is clear that neither the State nor the defense had an opportunity to present evidence or arguments regarding sentencing. Accordingly, I would remand to the trial court for resentencing.

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ANTONIO Z. HENDERSON, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D07-2479

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

November 30, 2007, Opinion FiledPRIOR HISTORY:    [*1]

3.800. Appeal from the Circuit Court for Putnam County, A.W. Nichols, III, Judge.

COUNSEL:   Antonio Z. Henderson, East Palatka, Pro se.

Bill McCollum, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   GRIFFIN, SAWAYA and MONACO, JJ., concur.

OPINION  

PER CURIAM.

The order denying Appellant’s fourth rule 3.800(a) motion to correct sentence is affirmed. On September 21, 2007, this Court directed Appellant to show cause why he should not be prohibited from filing any further appeals or petitions pertaining to his sentence in Putnam County Case No. 98-364, unless reviewed and signed by an attorney licensed to practice in the State of Florida. See generally, State v. Spencer, 751 So. 2d 47 (Fla. 1999). Appellant filed a response which has been carefully reviewed by this Court. Appellant’s sentence of fifteen years incarceration following the revocation of probation is legal and does not exceed the statutory maximum penalty for a second degree felony. If Appellant received an invalid departure sentence based on his violation of probation, that issue should have been raised on direct appeal. See Holloway v. State, 668 So. 2d 627 (Fla. 5th DCA 1996); Rouse v. State, 601 So. 2d 281 (Fla. 1st DCA),  [*2]  review denied, 604 So. 2d 487 (Fla. 1992). Appellant has continuously raised sentencing guideline scoresheet issues which have no bearing on his 15-year sentence, as the departure sentence was not subject to the range provided by his scoresheet. Appellant is hereby prohibited from filing any further appeals or petitions in this court regarding the sentence he received in Putnam County Case No. 98-364, unless reviewed and signed by an attorney licensed to practice in the State of Florida. The clerk of this court shall not accept any further pro se pleadings or appeals from Appellant which relate to the sentence in this case. See Freeman v. State, 794 So. 2d 735 (Fla. 5th DCA 2001), review dismissed, 906 So. 2d 1058 (Fla. 2005); Isley v. State, 652 So. 2d 409 (Fla. 5th DCA 1995).

The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat. (2005); Simpkins v. State, 909 So. 2d 427, 428 (Fla. 5th DCA 2005).

AFFIRMED; future pro se filings PROHIBITED; certified opinion FORWARDED to Department of Corrections.

GRIFFIN, SAWAYA and MONACO, JJ., concur.

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LAREGINALD PRESSLEY, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-1470

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

November 30, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Brevard County, Mark Cianca, Senior Judge.
Pressley v. State, 2007 Fla. App. LEXIS 14700 (Fla. Dist. Ct. App. 5th Dist., Sept. 21, 2007)

COUNSEL:   James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   GRIFFIN, SAWAYA and TORPY, JJ., concur.

OPINION  

ON MOTION FOR REHEARING

PER CURIAM.

We withdraw the prior panel decision and substitute this opinion in its place.

LaReginald Pressley challenges his conviction for lewd or lascivious molestation of his thirteen-year-old neighbor. Because we conclude that the trial court erroneously admitted the hearsay testimony of the victim’s mother, and because we are unable to conclude that this error was harmless, we reverse the conviction and remand for a new trial.

During Pressley’s jury trial, the State presented the testimony of the victim and her mother. The victim testified that on September 18, 2003, while she was walking home from school with her friends, she saw Pressley, her neighbor, standing on the side of the road by himself. Pressley asked her if her cell phone worked and she answered that it did. She gave Pressley her cell phone number  [*2]  and continued walking home. When she got home, Pressley called her cell phone and asked her to come over to his house. When she got to Pressley’s house, they talked briefly at the doorway. Pressley then stated that he “ha[d] been watching [her] for a long time” and pulled her into his house. She testified: “He pulled me in, closed the door, he had me against the wall. He put his tongue in my mouth, and his hands on my bottom, feeling me up.” She estimated that she was in the house about fifteen minutes before she was able to get away. She went home and called her mother at work. Although the victim testified that she was crying and felt sad, she did not tell her mother what had happened until her mother came home. The victim also testified that, after she got home following the incident, Pressley called her on her cell phone again, but she did not answer. When her mother got home, the victim told her what had happened.

The victim’s mother testified that Pressley lived three houses down from them. She described the relationship between her family and Pressley as “[a]ssociates, friends. He lived right down the street. Every time we saw him or somebody in my family saw him, we would speak,  [*3]  stop and talk. He’s cut my yard.” She testified that on the day of the alleged molestation, the victim called her and told her that she had something to tell her when she got home. She described the victim as sounding “a little down.” When she got home at “5:30, 6:00,” the victim told her what had happened. Over defense counsel’s hearsay objection and in response to questioning by the prosecutor, the mother testified that the victim made the following statements:

A. She asked me what was [sic] molestation was. I gave her my definition of it, and she told me that [Pressley] had put his hands on her butt.

Q. Did she [sic] anything else about what happened?

A. She told me he grabbed her, and pulled her into the house, and he put her up against the door, and he had her caged up, and wouldn’t let her out.

Q. Did she say anything about kissing?

A. She said he put his mouth on her’s [sic], and tried to put his tongue in her mouth.

Pressley did not testify and did not call any witnesses. His defense strategy was to attack the victim’s credibility. The State introduced Pressley’s telephone records, which showed that he had called the victim’s cell phone at 4:48 and 4:57 p.m. The defense argued, based  [*4]  on the phone records, that the victim’s testimony was entirely incredible because she had testified that she spoke with Pressley three to five minutes the first time he called, the molestation took fifteen minutes, and he called her a second time after she returned home.

The jury returned a verdict finding Pressley guilty of lewd or lascivious molestation. His motion for new trial, based on the admission of the hearsay testimony, was denied. The trial court sentenced Pressley, as an habitual felony offender, to ten years in prison, followed by seven years of sex offender probation.

On appeal, Pressley argues that the trial court erred in allowing the victim’s mother to testify, over his hearsay objection, as to what the victim told her about what happened. He contends that the hearsay testimony improperly bolstered the victim’s credibility. The error was prejudicial, he claims, because the case hinged on the victim’s credibility. Pressley also argues that, in ruling on his motion for new trial, the court erroneously ruled that the statement was admissible as an excited utterance. We agree.

Section 90.803(2), Florida Statutes (2006), defines the excited utterance exception to the hearsay  [*5]  rule, as follows: “A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Pressley contends that the victim’s statements to her mother did not fall within the excited utterance exception to the hearsay rule because the record establishes that the victim had time to reflect upon the events before making them. He relies on the testimony of both the victim and her mother, as well as phone records, as support. The victim testified that, after the incident, she left Pressley’s house, went home and called her mother. She told her mother that she had something to tell her when she got home. Her mother testified that she arrived home between 5:30 and 6:00 p.m. and the victim told her what happened. Pressley’s phone records, which had been admitted by the State, establish that the alleged molestation occurred no later than 4:57 p.m. Thus, according to Pressley, the victim had sufficient time for reflective thought and, therefore, the statements were not excited utterances.

Pressley relies on Hutchinson v. State, 882 So. 2d 943 (Fla. 2004). In that case, the defendant was accused  [*6]  of murdering his girlfriend and her three children. The state called Pruitt, a friend of the girlfriend, as a witness to testify. Over a hearsay objection, Pruitt recounted a telephone conversation she had with the girlfriend on the night of the murders, wherein the girlfriend told Pruitt that she and the defendant had had a big fight. Our supreme court reversed the trial court’s determination that the testimony was admissible as an excited utterance. The supreme court explained:

While an excited utterance need not be contemporaneous to the event, it must be made while the declarant is under the stress of the startling event and without time for reflection. See Rogers v. State, 660 So. 2d 237, 240 (Fla. 1995). In this case, the time between the startling event (the fight between [the girlfriend] and Hutchinson) and the telephone conversation is not clearly ascertainable from this record. The most that can be said is that the fight probably occurred between 7 p.m. (the approximate time of [the girlfriend’s] conversation with another friend) and 7:30 p.m. (the approximate time of [the girlfriend’s] conversation with Pruitt). Without more information, we can only speculate as to whether  [*7]  [the girlfriend] engaged in reflective thought. However, this was a long enough time interval to permit reflective thought. “[W]here the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process.” State v. Jano, 524 So. 2d 660, 661 (Fla. 1988) (quoting Edward W. Cleary, McCormick on Evidence, § 297, at 856 (3d ed. 1984)). There is no evidence in the record to show what occurred between the fight with Hutchinson and the phone call to Pruitt. Absent some evidence that [the girlfriend] did not engage in reflective thought, the statement to Pruitt cannot be admitted as an excited utterance. . . . Because the record does not describe the fight between [the girlfriend] and Hutchinson, or provide the time the fight was over, we have no evidence upon which to base a conclusion that [the girlfriend] did not engage in reflective thought. [The girlfriend’s] statements to Pruitt are not, therefore, admissible under the excited utterance exception to the hearsay rule.Hutchinson, 882 So. 2d at 951-52.

The State does not address  [*8]  the Hutchinson decision but, nonetheless, argues that the excited utterance exception applies to the victim’s statements to her mother. It primarily argues that the victim did not have time for reflective thought because there was only 45-60 minutes between the incident and the statements. As Hutchinson explains, however, although an excited utterance need not be contemporaneous to the event, it must be made while the declarant is under the stress of the startling event and without time for reflection. The burden is on the proponent of the statement to show that the declarant did not have time to reflect. Here, once the defense raised the hearsay objection, the burden shifted to the State to show that the statement fell within the excited utterance exception. The State has failed to meet this burden. The record supports Pressley’s argument that the victim had time for reflection before telling her mother what happened. Most telling is the fact that when the victim called her mother, she did not tell her mother what happened at that time; rather, the victim told her mother she needed to speak with her when she got home. Thus, the victim made a conscious decision to refrain from saying  [*9]  anything until some later point, indicating that she was not “under the stress of the startling event” at that time. Further, in Hutchinson, the court found that 30 minutes was a long enough time period for reflection. Here, the victim had at least 45 minutes to reflect before making the statements. We conclude, therefore, that the State failed to meet its burden to show that the exception applied.

The State offers two alternative bases for admission of the hearsay statement, neither of which was argued to the trial court. First, the State contends that the testimony was admissible as a prior consistent statement, pursuant to section 90.801(2)(b), Florida Statutes, because the defense attempted to show that the victim was motivated by her dislike of Pressley to fabricate the molestation allegation. Second, the State argues that the common law doctrine of “first complaint” applies. It defines that doctrine as allowing the admission of a statement made to the first person a declarant comes into contact with after the event. n1 We reject both of these alternative arguments because they are not supported by the record.

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The State does not offer any argument regarding whether this common  [*10]  law exception to the hearsay rule survived the adoption of the evidence code and it is not necessary that we address this issue in this case.
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Lastly, we reject the State’s contention that the error was harmless. Pressley’s conviction was premised entirely on the credibility of the only eyewitness to the event — the victim. The disputed testimony had the effect of improperly bolstering the victim’s testimony. “‘If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.’” Essex v. State, 917 So. 2d 953, 958 (Fla. 4th DCA 2005) (quoting State v. Lee, 531 So. 2d 133, 136 (Fla. 1988)). On the facts of this case, we are unable to say beyond a reasonable doubt that the error did not affect the jury’s verdict.

REVERSED AND REMANDED.

GRIFFIN, SAWAYA and TORPY, JJ., concur.

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JEFFERY SCOTT SIPPLE, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-2861

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

November 30, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

3.850. Appeal from the Circuit Court for Hernando County, Jack Springstead, Judge.
Sipple v. State, 928 So. 2d 484, 2006 Fla. App. LEXIS 6815 (Fla. Dist. Ct. App. 5th Dist., 2006)

COUNSEL:   Kevin T. Beck of Cohen, Jayson & Foster, P.A., Tampa, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   SAWAYA, J. PALMER, C.J., concurs., LAWSON, J., dissents, with opinion.

OPINION BY:   SAWAYA

OPINION  

SAWAYA, J.

The issue we must resolve is whether the failure on the part of trial counsel to object to inclusion of the forcible felony exception in the jury instruction regarding self-defense constituted ineffective assistance of counsel where the defendant was charged with only one offense. The defendant, Jeffrey Sipple, who was convicted of manslaughter with a firearm, alleges in the motion he filed pursuant to Florida Rule of Criminal Procedure 3.850 that because his trial counsel was ineffective for failing to object to the jury instruction, he is entitled to a new trial. The trial court disagreed, concluding that Sipple’s trial counsel had made a tactical decision to have the entire jury instruction on justifiable use of deadly force presented to the jury and that this decision was within the range of reasonable actions by a criminal  [*2]  defense attorney. We agree with Sipple and disagree with the trial court.

Discussion of the facts is not necessary to resolve the issue before us. Suffice it to say that Sipple gave a statement to the police describing how he became embroiled in a life and death struggle with the victim, who was his roommate, and explaining that he acted in self-defense when she was shot. Sipple was arrested and originally charged with second-degree murder. This was the only charge filed against him. During the trial, Sipple’s statement to police was admitted into evidence. It was Sipple’s position throughout the trial that he acted in self-defense.

At the close of the evidence, the trial court instructed the jury as to the forcible felony exception to self-defense:

However, the use of force likely to cause death or great bodily harm is not justifiable if you find, number one, Jeffery Sipple was attempting to commit or committing aggravated battery, murder, or manslaughter.Despite the fact that Sipple was charged with only one crime, the instruction drew no objection.

The jury found Sipple guilty of manslaughter with a firearm, and he was sentenced to 12 years in the Department of Corrections to be followed  [*3]  by three years of probation, the first two years to be served under community control. In Sipple’s direct appeal, this court rendered a per curiam affirmance. Sipple v. State, 894 So. 2d 1088 (Fla. 5th DCA 2005). When this court first reviewed the denial of Sipple’s rule 3.850 motion, we ordered that an evidentiary hearing be held. Sipple v. State, 928 So. 2d 484 (Fla. 5th DCA 2006).

At the evidentiary hearing, Sipple’s trial counsel testified that he had been a criminal defense attorney for 16 years. He had not objected to the giving of the forcible felony exception instruction because he had wanted the instruction given. He explained, “I wanted my client to have the benefit of that self-defense instruction. We were also alleging an accidental [shooting]. I wanted him to have both.” He stated that he had not discussed the instruction with Sipple. Although counsel testified that he did not believe that the instruction emasculated the self-defense theory, he was aware that the appellate courts had found to the contrary. He had no doubt but that the facts supported a prima facie case of self-defense.

Interestingly, the trial court interjected during the hearing that it recalled that Sipple’s  [*4]  counsel had requested the instruction and that is why no objection was made. In fact, however, the transcript of the charge conference shows that the State had requested the instruction, not Sipple’s counsel. The trial court denied Sipple’s motion, and this appeal followed.

The standard by which we determine whether a defendant is entitled to relief based on assertions of ineffective assistance of trial counsel derives from Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which requires a defendant to prove two elements: 1) counsel’s performance was deficient; and 2) the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687; Sanders v. State, 946 So. 2d 953 (Fla. 2006). In order to satisfy the first element, the defendant must show that “counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. To satisfy the second element, the defendant must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694; see also Sanders, 946 So. 2d at 956 (quoting Strickland). “A reasonable probability is a probability sufficient to undermine confidence  [*5]  in the outcome.” Strickland, 466 U.S. at 694.

As we begin our analysis of the first element, we must indulge “‘a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,’” and we must recognize that Sipple bears the “burden of proving that counsel’s representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy.” Brown v. State, 755 So. 2d 616, 628 (Fla. 2000) (quoting Strickland, 466 U.S. at 688-89). Defense counsel’s strategic choices do not constitute deficient conduct if alternative courses of action have been considered and rejected. See Sanders; Whitfield v. State, 923 So. 2d 375 (Fla. 2005); Shere v. State, 742 So. 2d 215, 220 (Fla. 1999); Rutherford v. State, 727 So. 2d 216 (Fla. 1998).

Sipple contends that this presumption has been overcome and that his trial counsel’s representation fell below the prevailing norm because the jury instruction was erroneous and essentially vitiated his claim of self-defense. The erroneous jury instruction Sipple complains about emanates from a legislative enactment, section 776.041(1), Florida Statutes, which provides that the use of  [*6]  force likely to cause death or great bodily harm is not justifiable if the defendant is attempting to commit or committing a forcible felony. This court and others have previously held that presenting this instruction to the jury is erroneous if it is given in cases where the defendant is charged with only one offense. See Bertke v. State, 927 So. 2d 76 (Fla. 5th DCA 2006); Hawk v. State, 902 So. 2d 331 (Fla. 5th DCA 2005); Carter v. State, 889 So. 2d 937 (Fla. 5th DCA 2004), review denied, 903 So. 2d 190 (Fla. 2005); Cleveland v. State, 887 So. 2d 362, 363 (Fla. 5th DCA 2004); Velazquez v. State, 884 So. 2d 377 (Fla. 2d DCA), review denied, 890 So. 2d 1115 (Fla. 2004); Dunnaway v. State, 883 So. 2d 876 (Fla. 4th DCA), review denied, 891 So. 2d 553 (Fla. 2004); Rich v. State, 858 So. 2d 1210, 1210 (Fla. 4th DCA 2003); Giles v. State, 831 So. 2d 1263, 1265 (Fla. 4th DCA 2002). The reason it is erroneous to give the instruction in such instances is because it “improperly negates the self-defense claim.” Hawk v. State, 902 So. 2d 331, 333 (Fla. 5th DCA 2005). Thus, the forcible felony instruction is intended to be used only when the defendant “is charged with at least two criminal acts,  [*7]  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. Sipple was charged with only one offense and his trial counsel testified that he was aware of the precedent we have just cited, but that he did not think that the instruction was erroneous. He also testified that he did not discuss this instruction with Sipple and indicated that he did not consider objecting to it or requesting that the erroneous part be deleted. Hence, we do not believe that it was a proper trial tactic to fail to object or to ask that the offensive part be deleted. Clearly, his failure to do so meets the deficiency element and, we note parenthetically, the State’s declination from its usual practice to argue to the contrary implies that it too believes that the first element has been satisfied. n1

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1

This court and others have held that appellate counsel is ineffective when he or she fails to raise the erroneous jury instruction in appellate proceedings. Bertke v. State, 927 So. 2d 76 (Fla. 5th DCA 2006); Davis v. State, 886 So. 2d 332 (Fla. 5th DCA 2004), review denied, 898 So. 2d 81 (Fla. 2005); Estevez v. Crosby, 858 So. 2d 376 (Fla. 4th DCA 2003).
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Turning  [*8]  to the second element, the State asserts that Sipple cannot establish prejudice from the giving of the instruction because the facts did not wholly support the claim of self-defense in the first place. Specifically, the State argues that Sipple’s statement to the police identified the incident as an accident–the gun had discharged when Sipple was struggling to get it pointed away from him. He, therefore, never claimed he had to kill the victim to prevent his own death or great bodily harm. The State cites Hopson v. State, 127 Fla. 243, 168 So. 810 (Fla. 1936), wherein the defendant contended that his wife had been the aggressor and had assaulted him. While they were fighting, the wife pulled out the pistol and, when he tried to take it away from her, the gun went off “by accident and unintentionally.” Id. at 811. The trial court instructed the jury on self-defense. The supreme court reversed on the ground that the evidence did not support the giving of that instruction, noting:

Self-defense is a plea in the nature of a confession and avoidance. In such cases the defendant confesses doing the act charged, but seeks to justify that act upon the claim that it was necessary to commit the act to save  [*9]  himself from death or great bodily harm.

A homicide committed in self-defense is justifiable. Where homicide is committed by accident or misfortune, the homicide is excusable, such as where, as was claimed in this case, a pistol was accidently [sic] and unintentionally discharged.Id. Relying on Hopson, the State asserts self-defense was never a valid theory of defense and thus no prejudice could possibly stem from the giving of the forcible felony exception instruction.

We note that the State’s assertion that Sipple was actually presenting a defense of accident is of very recent vintage–appearing first at the evidentiary hearing. Nevertheless, the record belies that argument. The transcript of the rebuttal argument presented at trial shows Sipple’s trial counsel’s own statement that the case was one of self-defense, not accident. Trial counsel’s questions to the venire, summation of evidence, and closing arguments focused exclusively on self-defense. Counsel even argued to the jury that self-defense applied to any lesser crimes.

As to the State’s assertion that the evidence did not support a claim of self-defense, we disagree. When self-defense is asserted in a criminal case, the defendant  [*10]  only has the burden of presenting some evidence to establish a prima facie case that the killing was justified. Murray v. State, 937 So. 2d 277, 282 (Fla. 4th DCA 2006); Adams v. State, 727 So. 2d 997, 999-1000 (Fla. 2d DCA 1999); Bolin v. State, 297 So. 2d 317 (Fla. 3d DCA), cert. denied, 304 So. 2d 452 (Fla. 1974). The state must then prove beyond a reasonable doubt that the defendant did not act in self-defense. Jenkins v. State, 942 So. 2d 910 (Fla. 2d DCA 2006), review denied, 950 So. 2d 414 (Fla. 2007); Fowler v. State, 921 So. 2d 708, 711-12 (Fla. 2d DCA 2006); Romero v. State, 901 So. 2d 260 (Fla. 4th DCA 2005); Andrews v. State, 577 So. 2d 650, 652 (Fla. 1st DCA), review denied, 587 So. 2d 1329 (Fla. 1991). As long as there is any evidence of self-defense presented by the defendant, the instruction is warranted. See Cartegena v. State, 909 So. 2d 414, 416 (Fla. 5th DCA 2005). As the court explained in Wright v. State, 705 So. 2d 102 (Fla. 4th DCA 1998):

[i]t is not the quantum or the quality of the proof as to self-defense that determines the requirement for giving the charge. If any evidence of a substantial character is adduced, either upon cross-examination of State witnesses  [*11]  or upon direct examination of the defendant and/or his witnesses, the element of self-defense becomes an issue, and the jury, as the trier of the facts, should be duly charged as to the law thereon, because it is the jury’s function to determine that issue.Id. at 104 (quoting Kilgore v. State, 271 So. 2d 148, 152 (Fla. 2d DCA 1972)); see also Sundberg v. State, 888 So. 2d 87, 88-89 (Fla. 5th DCA 2004), review denied, 906 So. 2d 1059 (Fla. 2005).

In order to establish a prima facie case of self-defense, the defendant does not have to testify at trial; his or her statement to the police admitted into evidence may be sufficient. See Peterka v. State, 890 So. 2d 219, 229 (Fla. 2004) (”We conclude that in light of Peterka’s statement to police, trial counsel presented a viable, coherent defense strategy of either self-defense or unintentional killing.”), cert. denied, 545 U.S. 1118, 125 S. Ct. 2911, 162 L. Ed. 2d 301 (2005); Henry v. State, 862 So. 2d 679 (Fla. 2003); Wright. Based on Sipple’s statement to the police, which was admitted into evidence, we conclude that Sipple met his burden of presenting a prima facie case of self-defense, which required the trial judge to properly instruct the jury as to that defense.

Because  [*12]  the erroneous jury instruction vitiated Sipple’s claim of self-defense and essentially relieved the State of its burden of proving beyond a reasonable doubt that Sipple did not act in self-defense, Sipple was clearly prejudiced. We believe that had the jury not been given the improper forcible felony instruction, there is a reasonable probability that Sipple would have been acquitted.

REVERSED AND REMANDED for a new trial.

PALMER, C.J., concurs.

LAWSON, J., dissents, with opinion.

DISSENT BY:   LAWSON

DISSENT  

LAWSON, J., dissenting.

For reasons explained in my concurring opinion in Granberry v. State, 32 Fla. L. Weekly D2603 (Fla. 5th DCA Nov. 2, 2007), I do not believe that instructing the jury on the forcible felony exception was improper, or prejudiced Sipple in any way. Therefore, I would affirm.

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JEFFERY SCOTT SIPPLE, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-2861

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

November 30, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

3.850. Appeal from the Circuit Court for Hernando County, Jack Springstead, Judge.
Sipple v. State, 928 So. 2d 484, 2006 Fla. App. LEXIS 6815 (Fla. Dist. Ct. App. 5th Dist., 2006)

COUNSEL:   Kevin T. Beck of Cohen, Jayson & Foster, P.A., Tampa, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   SAWAYA, J. PALMER, C.J., concurs., LAWSON, J., dissents, with opinion.

OPINION BY:   SAWAYA

OPINION  

SAWAYA, J.

The issue we must resolve is whether the failure on the part of trial counsel to object to inclusion of the forcible felony exception in the jury instruction regarding self-defense constituted ineffective assistance of counsel where the defendant was charged with only one offense. The defendant, Jeffrey Sipple, who was convicted of manslaughter with a firearm, alleges in the motion he filed pursuant to Florida Rule of Criminal Procedure 3.850 that because his trial counsel was ineffective for failing to object to the jury instruction, he is entitled to a new trial. The trial court disagreed, concluding that Sipple’s trial counsel had made a tactical decision to have the entire jury instruction on justifiable use of deadly force presented to the jury and that this decision was within the range of reasonable actions by a criminal  [*2]  defense attorney. We agree with Sipple and disagree with the trial court.

Discussion of the facts is not necessary to resolve the issue before us. Suffice it to say that Sipple gave a statement to the police describing how he became embroiled in a life and death struggle with the victim, who was his roommate, and explaining that he acted in self-defense when she was shot. Sipple was arrested and originally charged with second-degree murder. This was the only charge filed against him. During the trial, Sipple’s statement to police was admitted into evidence. It was Sipple’s position throughout the trial that he acted in self-defense.

At the close of the evidence, the trial court instructed the jury as to the forcible felony exception to self-defense:

However, the use of force likely to cause death or great bodily harm is not justifiable if you find, number one, Jeffery Sipple was attempting to commit or committing aggravated battery, murder, or manslaughter.Despite the fact that Sipple was charged with only one crime, the instruction drew no objection.

The jury found Sipple guilty of manslaughter with a firearm, and he was sentenced to 12 years in the Department of Corrections to be followed  [*3]  by three years of probation, the first two years to be served under community control. In Sipple’s direct appeal, this court rendered a per curiam affirmance. Sipple v. State, 894 So. 2d 1088 (Fla. 5th DCA 2005). When this court first reviewed the denial of Sipple’s rule 3.850 motion, we ordered that an evidentiary hearing be held. Sipple v. State, 928 So. 2d 484 (Fla. 5th DCA 2006).

At the evidentiary hearing, Sipple’s trial counsel testified that he had been a criminal defense attorney for 16 years. He had not objected to the giving of the forcible felony exception instruction because he had wanted the instruction given. He explained, “I wanted my client to have the benefit of that self-defense instruction. We were also alleging an accidental [shooting]. I wanted him to have both.” He stated that he had not discussed the instruction with Sipple. Although counsel testified that he did not believe that the instruction emasculated the self-defense theory, he was aware that the appellate courts had found to the contrary. He had no doubt but that the facts supported a prima facie case of self-defense.

Interestingly, the trial court interjected during the hearing that it recalled that Sipple’s  [*4]  counsel had requested the instruction and that is why no objection was made. In fact, however, the transcript of the charge conference shows that the State had requested the instruction, not Sipple’s counsel. The trial court denied Sipple’s motion, and this appeal followed.

The standard by which we determine whether a defendant is entitled to relief based on assertions of ineffective assistance of trial counsel derives from Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which requires a defendant to prove two elements: 1) counsel’s performance was deficient; and 2) the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687; Sanders v. State, 946 So. 2d 953 (Fla. 2006). In order to satisfy the first element, the defendant must show that “counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. To satisfy the second element, the defendant must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694; see also Sanders, 946 So. 2d at 956 (quoting Strickland). “A reasonable probability is a probability sufficient to undermine confidence  [*5]  in the outcome.” Strickland, 466 U.S. at 694.

As we begin our analysis of the first element, we must indulge “‘a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,’” and we must recognize that Sipple bears the “burden of proving that counsel’s representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy.” Brown v. State, 755 So. 2d 616, 628 (Fla. 2000) (quoting Strickland, 466 U.S. at 688-89). Defense counsel’s strategic choices do not constitute deficient conduct if alternative courses of action have been considered and rejected. See Sanders; Whitfield v. State, 923 So. 2d 375 (Fla. 2005); Shere v. State, 742 So. 2d 215, 220 (Fla. 1999); Rutherford v. State, 727 So. 2d 216 (Fla. 1998).

Sipple contends that this presumption has been overcome and that his trial counsel’s representation fell below the prevailing norm because the jury instruction was erroneous and essentially vitiated his claim of self-defense. The erroneous jury instruction Sipple complains about emanates from a legislative enactment, section 776.041(1), Florida Statutes, which provides that the use of  [*6]  force likely to cause death or great bodily harm is not justifiable if the defendant is attempting to commit or committing a forcible felony. This court and others have previously held that presenting this instruction to the jury is erroneous if it is given in cases where the defendant is charged with only one offense. See Bertke v. State, 927 So. 2d 76 (Fla. 5th DCA 2006); Hawk v. State, 902 So. 2d 331 (Fla. 5th DCA 2005); Carter v. State, 889 So. 2d 937 (Fla. 5th DCA 2004), review denied, 903 So. 2d 190 (Fla. 2005); Cleveland v. State, 887 So. 2d 362, 363 (Fla. 5th DCA 2004); Velazquez v. State, 884 So. 2d 377 (Fla. 2d DCA), review denied, 890 So. 2d 1115 (Fla. 2004); Dunnaway v. State, 883 So. 2d 876 (Fla. 4th DCA), review denied, 891 So. 2d 553 (Fla. 2004); Rich v. State, 858 So. 2d 1210, 1210 (Fla. 4th DCA 2003); Giles v. State, 831 So. 2d 1263, 1265 (Fla. 4th DCA 2002). The reason it is erroneous to give the instruction in such instances is because it “improperly negates the self-defense claim.” Hawk v. State, 902 So. 2d 331, 333 (Fla. 5th DCA 2005). Thus, the forcible felony instruction is intended to be used only when the defendant “is charged with at least two criminal acts,  [*7]  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. Sipple was charged with only one offense and his trial counsel testified that he was aware of the precedent we have just cited, but that he did not think that the instruction was erroneous. He also testified that he did not discuss this instruction with Sipple and indicated that he did not consider objecting to it or requesting that the erroneous part be deleted. Hence, we do not believe that it was a proper trial tactic to fail to object or to ask that the offensive part be deleted. Clearly, his failure to do so meets the deficiency element and, we note parenthetically, the State’s declination from its usual practice to argue to the contrary implies that it too believes that the first element has been satisfied. n1

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1

This court and others have held that appellate counsel is ineffective when he or she fails to raise the erroneous jury instruction in appellate proceedings. Bertke v. State, 927 So. 2d 76 (Fla. 5th DCA 2006); Davis v. State, 886 So. 2d 332 (Fla. 5th DCA 2004), review denied, 898 So. 2d 81 (Fla. 2005); Estevez v. Crosby, 858 So. 2d 376 (Fla. 4th DCA 2003).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Turning  [*8]  to the second element, the State asserts that Sipple cannot establish prejudice from the giving of the instruction because the facts did not wholly support the claim of self-defense in the first place. Specifically, the State argues that Sipple’s statement to the police identified the incident as an accident–the gun had discharged when Sipple was struggling to get it pointed away from him. He, therefore, never claimed he had to kill the victim to prevent his own death or great bodily harm. The State cites Hopson v. State, 127 Fla. 243, 168 So. 810 (Fla. 1936), wherein the defendant contended that his wife had been the aggressor and had assaulted him. While they were fighting, the wife pulled out the pistol and, when he tried to take it away from her, the gun went off “by accident and unintentionally.” Id. at 811. The trial court instructed the jury on self-defense. The supreme court reversed on the ground that the evidence did not support the giving of that instruction, noting:

Self-defense is a plea in the nature of a confession and avoidance. In such cases the defendant confesses doing the act charged, but seeks to justify that act upon the claim that it was necessary to commit the act to save  [*9]  himself from death or great bodily harm.

A homicide committed in self-defense is justifiable. Where homicide is committed by accident or misfortune, the homicide is excusable, such as where, as was claimed in this case, a pistol was accidently [sic] and unintentionally discharged.Id. Relying on Hopson, the State asserts self-defense was never a valid theory of defense and thus no prejudice could possibly stem from the giving of the forcible felony exception instruction.

We note that the State’s assertion that Sipple was actually presenting a defense of accident is of very recent vintage–appearing first at the evidentiary hearing. Nevertheless, the record belies that argument. The transcript of the rebuttal argument presented at trial shows Sipple’s trial counsel’s own statement that the case was one of self-defense, not accident. Trial counsel’s questions to the venire, summation of evidence, and closing arguments focused exclusively on self-defense. Counsel even argued to the jury that self-defense applied to any lesser crimes.

As to the State’s assertion that the evidence did not support a claim of self-defense, we disagree. When self-defense is asserted in a criminal case, the defendant  [*10]  only has the burden of presenting some evidence to establish a prima facie case that the killing was justified. Murray v. State, 937 So. 2d 277, 282 (Fla. 4th DCA 2006); Adams v. State, 727 So. 2d 997, 999-1000 (Fla. 2d DCA 1999); Bolin v. State, 297 So. 2d 317 (Fla. 3d DCA), cert. denied, 304 So. 2d 452 (Fla. 1974). The state must then prove beyond a reasonable doubt that the defendant did not act in self-defense. Jenkins v. State, 942 So. 2d 910 (Fla. 2d DCA 2006), review denied, 950 So. 2d 414 (Fla. 2007); Fowler v. State, 921 So. 2d 708, 711-12 (Fla. 2d DCA 2006); Romero v. State, 901 So. 2d 260 (Fla. 4th DCA 2005); Andrews v. State, 577 So. 2d 650, 652 (Fla. 1st DCA), review denied, 587 So. 2d 1329 (Fla. 1991). As long as there is any evidence of self-defense presented by the defendant, the instruction is warranted. See Cartegena v. State, 909 So. 2d 414, 416 (Fla. 5th DCA 2005). As the court explained in Wright v. State, 705 So. 2d 102 (Fla. 4th DCA 1998):

[i]t is not the quantum or the quality of the proof as to self-defense that determines the requirement for giving the charge. If any evidence of a substantial character is adduced, either upon cross-examination of State witnesses  [*11]  or upon direct examination of the defendant and/or his witnesses, the element of self-defense becomes an issue, and the jury, as the trier of the facts, should be duly charged as to the law thereon, because it is the jury’s function to determine that issue.Id. at 104 (quoting Kilgore v. State, 271 So. 2d 148, 152 (Fla. 2d DCA 1972)); see also Sundberg v. State, 888 So. 2d 87, 88-89 (Fla. 5th DCA 2004), review denied, 906 So. 2d 1059 (Fla. 2005).

In order to establish a prima facie case of self-defense, the defendant does not have to testify at trial; his or her statement to the police admitted into evidence may be sufficient. See Peterka v. State, 890 So. 2d 219, 229 (Fla. 2004) (”We conclude that in light of Peterka’s statement to police, trial counsel presented a viable, coherent defense strategy of either self-defense or unintentional killing.”), cert. denied, 545 U.S. 1118, 125 S. Ct. 2911, 162 L. Ed. 2d 301 (2005); Henry v. State, 862 So. 2d 679 (Fla. 2003); Wright. Based on Sipple’s statement to the police, which was admitted into evidence, we conclude that Sipple met his burden of presenting a prima facie case of self-defense, which required the trial judge to properly instruct the jury as to that defense.

Because  [*12]  the erroneous jury instruction vitiated Sipple’s claim of self-defense and essentially relieved the State of its burden of proving beyond a reasonable doubt that Sipple did not act in self-defense, Sipple was clearly prejudiced. We believe that had the jury not been given the improper forcible felony instruction, there is a reasonable probability that Sipple would have been acquitted.

REVERSED AND REMANDED for a new trial.

PALMER, C.J., concurs.

LAWSON, J., dissents, with opinion.

DISSENT BY:   LAWSON

DISSENT  

LAWSON, J., dissenting.

For reasons explained in my concurring opinion in Granberry v. State, 32 Fla. L. Weekly D2603 (Fla. 5th DCA Nov. 2, 2007), I do not believe that instructing the jury on the forcible felony exception was improper, or prejudiced Sipple in any way. Therefore, I would affirm.

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