       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            FRED HARRISON,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D16-2422

                            [October 25, 2017]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Okeechobee County; Dan L. Vaughn, Judge; L.T. Case No.
472015CF000345A.

  Carey Haughwout, Public Defender, and Anthony Calvello, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina
Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for
appellee.

PER CURIAM.

   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, “[t]he 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.’” 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, because 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.

                           *         *       *

   Not final until disposition of timely filed motion for rehearing.




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