                                    IN THE DISTRICT COURT OF APPEAL
                                    FIRST DISTRICT, STATE OF FLORIDA

JOHN SWEARINGDEN,                   NOT FINAL UNTIL TIME EXPIRES TO
                                    FILE MOTION FOR REHEARING AND
      Appellant,                    DISPOSITION THEREOF IF FILED

v.                                  CASE NO. 1D14-146

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed May 12, 2015.

An appeal from the Circuit Court for Duval County.
Mark Hulsey, III, Judge.

Nancy A. Daniels, Public Defender, and Courtenay H. Miller, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

      Appellant was convicted of second-degree murder and sentenced to life in

prison for stabbing a man in the head with a knife during an alcohol-fueled

argument over a woman. Appellant claimed that he stabbed the victim in self-
defense. There was conflicting evidence as to whether the victim or Appellant was

the initial aggressor. The trial court instructed the jury that:

             If the defendant was not engaged in an unlawful activity
             and was attacked in a place where he had a right to be, he
             had no duty to retreat and had the right to stand his
             ground and meet force with force, including deadly force
             if he reasonably believed that it was necessary to do so to
             prevent death or great bodily harm to himself.

                                       *    *   *

             However, use of deadly force is not justifiable if you find
             the defendant initially provoked the use of force against
             himself unless, one, force asserted toward the defendant
             was so great that he reasonably believed that he was in
             imminent danger of death or great bodily harm and had
             exhausted every reasonable means to escape the
             danger of [sic]1 using deadly force on [the victim] or,
             number two, in good faith, the defendant withdrew from
             physical contact with [the victim] and clearly indicated to
             [the victim] that he wanted to withdraw and stop the use
             of deadly force but [the victim] continued or resumed the
             use of force.

(emphasis added).

      Appellant contends that the trial court committed fundamental error2 in


1
   The word “of” appears to be a misstatement by the trial court or an error in
transcription by the court reporter because the written instructions contained in the
record track Florida Standard Jury Instruction (Criminal) 3.6(f) verbatim and read
in pertinent part: “. . . exhausted every reasonable means to escape the danger,
other than using deadly force on [the victim] . . . .” This discrepancy does not
affect our analysis of the issue raised by Appellant.
2
   Appellant did not object to the instructions at trial, but because the record does
not reflect that he specifically requested or affirmatively agreed to the challenged
portions of the instructions, he did not waive the issue for appeal. See Moore v.
                                           2
giving these instructions because the portions of the instructions emphasized above

negate each other with respect to his duty to retreat or not. We are compelled to

agree based on Floyd v. State, 151 So. 3d 452 (Fla. 1st DCA 2014), rev. granted

2014 WL 7251662 (Fla. Dec. 16, 2014), and Ross v. State, 40 Fla. L. Weekly

D327 (Fla. 1st DCA Feb. 3, 2015). But see Sims v. State, 140 So. 3d 1000, 1003

n.3 (Fla. 1st DCA 2014) (stating in dicta that where there is a dispute as to who

was the initial aggressor, no error results from instructing the jury that the

defendant both did (if he was the initial aggressor) and did not (if the victim was

the initial aggressor) have a duty to retreat). Accordingly, we reverse Appellant’s

judgment and sentence and remand for a new trial. 3

      Additionally, we certify that this case passes on the same question of great

public importance that we certified to the Florida Supreme Court in Floyd:

             DOES FLORIDA STANDARD JURY INSTRUCTION
             (CRIMINAL) 3.6(F) PROVIDE CONFLICTING
             INSTRUCTIONS AS TO THE DUTY TO RETREAT?

Floyd v. State, Case No. 1D11-4465 (Oct. 17, 2014) (order granting Appellee’s

motion to certify a question of great public importance). More specifically, the

State, 114 So. 3d 486, 490-93 (Fla. 1st DCA 2013); cf. Oliver v. State, 40 Fla. L.
Weekly D303 (Fla. 1st DCA Jan. 29, 2015) (rejecting defendant’s argument that
jury instructions were fundamentally erroneous based on Floyd because, at the
charge conference, defense counsel affirmatively requested and specifically agreed
to the applicable parts of the justifiable use of deadly force instructions that were to
be given to the jury).
3
    Based on this disposition, we need not address the other issues raised by
Appellant.
                                            3
question of great public importance framed by this case is:

            IN A CASE WHERE THE DEFENDANT’S SOLE
            DEFENSE IS SELF-DEFENSE AND THERE IS A
            DISPUTE AS TO WHETHER THE DEFENDANT OR
            THE VICTIM WAS THE INITIAL AGGRESSOR,
            DOES A TRIAL COURT COMMIT FUNDAMENTAL
            ERROR BY INSTRUCTING THE JURY BOTH (1)
            THAT THE DEFENDANT DID NOT HAVE A DUTY
            TO RETREAT AND THAT HE COULD MEET FORCE
            WITH DEADLY FORCE IF HE REASONABLY
            BELIEVED THAT IT WAS NECESSARY TO DO SO
            TO PREVENT DEATH OR GREAT BODILY HARM
            TO HIMSELF, AND (2) THAT THE DEFENDANT’S
            USE OF DEADLY FORCE WAS NOT JUSTIFIABLE
            IF HE WAS THE INITIAL AGGRESSOR UNLESS HE
            EXHAUSTED EVERY REASONABLE MEANS TO
            ESCAPE THE DANGER OTHER THAN USING
            DEADLY FORCE?

      REVERSED and REMANDED for a new trial; QUESTION CERTIFIED.

CLARK, WETHERELL, and RAY, JJ., CONCUR.




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