FRED HARRISON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant's convictions for two counts of burglary with assault or battery were reversed due to the trial court's failure to instruct the jury on the affirmative defense of consent to enter the residence, which constituted fundamental error where consent was defendant's sole defense theory; sexual battery conviction affirmed.
The trial court's failure to instruct the jury on the affirmative defense of consent to enter a residence constitutes fundamental error when consent is the defendant's sole or primary defense theory and is supported by trial evidence.
[1] Omission of jury instruction on affirmative defense of consent to enter a residence constitutes fundamental error when consent is defendant's sole defense theory supporte…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the lack of a jury instruction on an affirmative defense only amounts to fundamental error when a defendant is deprived of his or her sole or primary defense strategy, and that defense is supported by evidence adduced at trial not otherwise characterized as weak.”
Standard for when omission of jury instruction on affirmative defense constitutes fundamental error
The defendant was convicted of two counts of burglary of a dwelling with assault or battery and one count of sexual battery on a person twelve years o…
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The defendant appeals his convictions on two counts of burglary of a dwelling with an assault or battery, and one count of sexual battery on a person twelve years of age or older. He raises multiple issues on appeal and we affirm, with one exception. He argues the court erred in failing to instruct the jury on his affirmative defense of consent to enter the residence, a defense included in the standard jury instruction for burglary. See Fla. Std. Jury Instr. (Crim.) 13.1 (2016). Generally, “[tjhe lack of a jury instruction on an affirmative defense only amounts to fundamental error when ⅛ defendant is deprived of his or her sole or primary defense strategy, and that defense is supported by evidence adduced at trial not otherwise characterized as weak.’ ” Faulk v. State, 222 So.3d 621, 623 (Fla. 1st DCA 2017) (quoting Woods v. State, 95 So.3d 925, 927 (Fla. 5th DCA 2012)). In this case, just as in Faulk, be*831cause the court failed to instruct the jury on consent, the defendant was deprived of his sole theory of defense. This amounted to fundamental error. See id.
Therefore, we affirm the defendant’s conviction and sentence for sexual battery, but reverse both burglary convictions, and remand for retrial on the burglary charges.
Affirmed in part and reversed in part.
Taylor, May and Kuntz, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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In re STANDARD JURY INSTRUCTIONS IN CRIM. CASES-REPORT 2018-05., 257 So. 3d 925 (Fla. 2018)…2d 510 (Fla. 1982), and State v. Waters, 436 So. 2d 66 (Fla. 1983). Failure to instruct on consent constitutes fundamental error where consent is the sole or primary defense. Faulk v. State, 222 So. 3d 621 (Fla. 1st DCA 2017) and Harrison v. State, 229 So. 3d 830 (Fla. 4th DCA 2017). 3. [(Defendant) was not [licensed] [invited] to enter the [structure] [conveyance].] [The premises were not open to the public at the time of the entering.]It is a defense to the crime of Burglary if [(defendant) was [licensed]…
Authorities Cited
- Woods v. State, 95 So. 3d 925 (Fla. 5th DCA 2012)
- Florzell Antonio Dewayne Faulk v. State, 222 So. 3d 621 (Fla. 1st DCA 2017)