          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FOURTH DISTRICT

                     WENDELL SHERMAN CALKINS,
                             Appellant,

                                       v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D14-2392

                               [July 22, 2015]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Okeechobee County; Sherwood Bauer, Jr., Judge; L.T. Case No.
472014CF000093A.

   Carey Haughwout, Public Defender, and Gary Lee Caldwell and
Timothy Wang, Assistant Public Defenders, West Palm Beach, for
appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

    The defendant appeals his conviction of felony battery. He argues the
court erred in: (1) failing to instruct the jury on self-defense, (2) sustaining
a relevancy objection on whether the victim had permission to drive the
truck, and (3) finding no discovery violation by the State. We agree on the
first issue and reverse for a new trial.

   The State charged the defendant with aggravated battery. The charges
arose from an altercation between the defendant and the victim, his
nephew, which occurred when the defendant, the victim, and the truck
owner were driving home. The victim testified that he was riding in the
passenger seat of the truck. He yelled at the defendant because the
defendant drove past a police officer while speeding, had consumed
alcohol, and was driving without a license in an unregistered vehicle.
According to the victim, the defendant pulled over to the side of the road,
argued with him, and then “sucker punched him [o]n the side of [his]
head.”
    The victim then punched the defendant in the face and forced him out
of the truck. While outside, the defendant moved to the passenger side of
the truck, grabbed a piece of wood from the back of the truck, and hit the
victim on the side of his face. The victim attempted to move to the driver’s
side to elude the defendant and drive away, leaving the defendant on the
side of the road. Law enforcement did not find the wood allegedly used in
the altercation.

   Recordings from the jail inmate phone system revealed that the
defendant said the victim “just kept on and kept on . . . . You know, and
you know, I popped him. And he . . . hit me in the . . . nose and busted
my nose and my nose started bleeding. And I got out of the truck and
grabbed him and pulled hi[m] . . . out of the truck.”

    The third passenger, the truck owner, who was in the back seat,
testified for the defendant. He testified that the victim “you know, kind of
had a slip of the hand and it hit him here.” Then, the defendant got out
of the truck and hit the victim with a stick before the victim drove the truck
away.

    After closing argument, defense counsel requested a self-defense
instruction, which the court denied. The jury found the defendant guilty
of the lesser-included offense of battery. The court then read the parties’
stipulation that the defendant had a prior battery conviction.

   After further deliberation, the jury found the defendant guilty of felony
battery. The court sentenced him to forty-two months’ imprisonment.
From his conviction and sentence, the defendant appeals.

   The defendant argues the court erred in denying his request for a self-
defense instruction as both untimely and unsupported by the evidence.
The State responds that there was no evidence to support the self-defense
instruction. The defendant replies that the State has conceded the
timeliness issue and the evidence did support the instruction.

   We review a trial court’s decision to give or withhold a proposed jury
instruction for an abuse of discretion. McKenzie v. State, 830 So. 2d 234,
236 (Fla. 4th DCA 2002).

   Defense counsel argued self-defense in his closing. During the State’s
closing, the prosecutor argued self-defense did not matter because the jury
was “not going to get a self-defense instruction at all.” After the State’s
closing, defense counsel notified the court that he was unaware there was

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no self-defense instruction. The court asked defense counsel why he
previously agreed to the instructions, to which he responded that he
thought a self-defense instruction was included.

   Defense counsel then requested a self-defense instruction. The court
denied the request, finding it came too late, and there was no competent
evidence to support the instruction. The trial court erred on both
accounts.

   The timeliness issue is easily resolved as the State correctly agrees that
defense counsel’s request for a self-defense instruction was timely because
the jury had not yet retired. Ramsaran v. State, 664 So. 2d 1106, 1107
(Fla. 4th DCA 1995). In fact, the request came before the court began
instructing the jury. The court erred in denying the request on this basis.

    We also find error in the court’s decision that the evidence did not
support a self-defense instruction. “A criminal defendant is entitled to
have the jury instructed on the law applicable to his or her theory of
defense where there is any evidence to support it, no matter how weak or
flimsy.” Gregory v. State, 937 So. 2d 180, 182 (Fla. 4th DCA 2006) (first
emphasis in original; second emphasis added) (citing numerous cases).

   “‘The trial court should not weigh the evidence for the purpose of
determining whether the instruction is appropriate.’” Charles v. State, 945
So. 2d 579, 582 (Fla. 4th DCA 2006) (quoting Gregory, 937 So. 2d at 182).

      It 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 . . . 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.

Garramone v. State, 636 So. 2d 869, 870 (Fla. 4th DCA 1994) (alteration
in original) (emphasis in original) (quoting Kiernan v. State, 613 So. 2d
1362, 1364 (Fla. 4th DCA 1993)).

   Here, the truck owner testified that the victim and defendant began to
argue, and “you know, [the victim] kind of had a slip of the hand and it hit
him here.” So, there was testimony indicating the victim struck first. This
was sufficient to warrant the self-defense instruction. We find no merit in
the other issues raised.

   Reversed and remanded for a new trial.

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TAYLOR and KLINGENSMITH, JJ., concur.

                          *        *      *

  Not final until disposition of timely filed motion for rehearing.




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