Florida/Georgia Personal Injury & Workers Compensation

...But that defense is subject to exceptions, one of which is known as the forcible felony exception, which provides that the “justification [defense] is not available to a person who . . . [i]s attempting to commit, committing, or escaping after the commission of, a forcible felony . . . .” Id. § 776.041(1). Florida courts have held that the forcible felony exception instruction applies only when the defendant is committing an independent forcible felony separate from the one for which he is claiming self-defense. See Martinez v. State, 981 So. 2d 449, 454 (Fla. 2008); see also Giles v. State, 831 So. 2d 1263, 1265 (Fla. 4th DCA 2002) (explaining that the plain language of § 776.041(1) “indicates that it is applicable only under circumstances where the person claiming self-defense is engaged in another, independent ‘forcible felony’ at the time”)....

...During pretrial proceedings, the state conceded that Perkins acted in self defense, [3] but later argued that Perkins was barred from raising a legal claim of self defense because he was involved in a "forcible felony" as defined in Florida Statutes. Under section 776.041(1), Florida Statutes (1987), the defense of self defense is not available to a person who: (1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony....

...if violence is a "foreseeable" result. [8] The statute, for example, contemplates that self defense may be available to the initial aggressor if the killing does not occur in the same sequence of events that flows from that aggressor's own violence, § 776.041(1), Fla. Stat. (1987), or if the aggressor has attempted to withdraw and has indicated this intention before the victim counterattacks. § 776.041(2)(b), Fla. Stat. (1987). In addition, an initial aggressor may be entitled to claim self defense if the victim responds with extreme force and the aggressor then attempts to flee and exhausts all means of escape before killing the victim. § 776.041(2)(a), Fla....

...l duty to protect. [Page A-4] *1182 3. (Defendant) must have reasonably believed that [his] [her] use of force was necessary to prevent or terminate (victim's) wrongful behavior. Aggressor The use of force not likely to cause death or great bodily F.S. 776.041 harm is not justifiable if you find: Give if 1....

...t only to v. State, the extent [he] [she] reasonably believes such force 398 So.2d 926 is necessary. (Fla. 1st DCA 1981); Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985). In some instances, the instructions applicable to F.S. 776.012, 776.031 or 776.041 may need to be given in connection with this instruction....

...y defense); Harris v. State, 570 So.2d 397, 399 (Fla. 3d DCA 1990)(recognizing it to be fundamental that trial court should give a complete and accurate instruction so as not to negate the defendant's theory of defense). The instruction was based on section 776.041(1), Florida Statutes (2002), which provides: 776.041 Use of force by aggressor— The justification described in the preceding sections of this chapter is not available to a person who: (1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony.... Although a "forcible felony" as used in the statute includes an aggravated battery, see § 776.08, Fla. Stat., the plain language of section 776.041 indicates that it is applicable only under circumstances where the person claiming self-defense is engaged in another, independent "forcible felony" at the time....

...The instruction is normally given in situations where the accused is charged with at least two criminal acts, the act for which the accused is claiming self-defense and a separate forcible felony. See Marshall v. State, 604 So.2d 799 (Fla.1992)(holding that section 776.041 jury instruction was proper on claim of self-defense to charge of felony murder where underlying felonies were burglary and aggravated battery); cf....

...Here, by contrast, Giles committed *1266 only one act, the alleged aggravated battery. The instruction given improperly told the jury that the very act Giles sought to justify itself precluded a finding of justification. Essentially, the jury was instructed that 776.041(1) would apply to preclude a self-defense claim, when it is claimed that the acts with which the defendant is charged are themselves committed in appropriate self-defense....

...the imminent commission of (applicable define applicable forcible felony) against himself or forcible another. felony defendant alleges victim was about to commit *1000 Aggressor However, the use of force likely to cause F.S. death or great bodily harm is not justifiable 776.041 if you find: Give if 1....

...State, in the use of reasonable force to defend himself 398 So.2d 926 (Fla. (or another), but only to the extent he 1st DCA 1981); Jackson reasonably believes such force is necessary. v. State, 463 So.2d 372 (Fla. 5th DCA 1985). In some instances, the instructions applicable to F.S. 776.012, 776.031 or 776.041 may need to be given in connection with this instruction....

...ose property he was under a legal duty to protect. 3. (Defendant) must have reasonably believed that his use of force was necessary to prevent or terminate (victim's) wrongful behavior. *1004 Aggressor The use of force not likely to cause death or F.S. 776.041 great bodily harm is not justifiable if you find: Give if applicable 1....

...State, use of reasonable force to defend himself (or 398 So.2d 926 (Fla. another), but only to the extent he reasonably 1st DCA 1981); Jackson believes such force is necessary. v. State, 463 So.2d 372 (Fla. 5th DCA 1985). In some instances, the instructions applicable to F.S. 776.012, 776.031 or 776.041 may need to be given in connection with this instruction....

...to cause death or great bodily harm is not justifiable if you find: 1. Eric Martinez was attempting to commit, committing, or escaping after the commission of an Attempted Murder and/or Aggravated Battery . . . . Id. at 1157 (emphasis supplied); see § 776.041(1), Fla....

...-felony instruction to apply, and every district court of appeal in Florida has misinterpreted the statute that created the forcible-felony exception. However, a complete review of the statute that created the exception belies the State's assertion. Section 776.041 of the Florida Statutes, "Use of Force by Aggressor," provides that a claim of self-defense is not available to a person who: (1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony....

...t; or (b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force. § 776.041, Fla....

...lf. To do so, we review the plain language of the forcible-felony subsection of the statute, which prohibits a claim of self-defense where the defendant "[i]s attempting to commit, committing, or escaping after the commission of, a forcible felony." § 776.041(1), Fla....

...Thus, when a defendant asserts a claim of self-defense, he admits the commission of the criminal act with which he was charged but contends that the act was justifiable. The underlying facts of the present case demonstrate why it would be illogical to conclude that section 776.041(1) applies where there is no independent forcible felony....

...egedly initiated the attack against Rijo and, therefore, he was committing a forcible felony, the State fails to recognize that the jury was also instructed on the defendant-as-provoker exception to the claim of self-defense (i.e., subsection (2) of section 776.041)....

...[3] Hence, even if the jury believed the version of events related by Martinez (i.e., he was not the provoker, and Rijo attacked him first), the forcible-felony instruction precluded the jury from finding that he acted in self-defense. Indeed, under the State's interpretation of section 776.041(1), in any case in which a defendant alleges that he or she committed a forcible felony in self-defense, and the case involves no independent forcible felony, the instruction would render that felony de facto unjustifiable and also render subsection (2) superfluous....

...imminent death or great bodily harm to [himself] [herself] or another, or 2. the imminent commission of (applicable forcible felony) against [himself] [herself] or another. Insert and define applicable forcible felony that defendant alleges victim was about to commit. Aggressor. § 776.041, Fla....

...bly believes such force is necessary. See § 776.012, Fla. Stat.; Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981) ; Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985) . In some instances, the instructions applicable to §§ 776.012, 776.031, or 776.041, Fla....

...transport people or property. Define applicable forcible felony that defendant alleges victim was about to commit. Give in all cases. A person does not have a duty to retreat if the person is in a place where [he] [she] has a right to be. Aggressor. § 776.041, Fla....

...bly believes such force is necessary. See § 776.012, Fla. Stat.; Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981) ; Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985) . In some instances, the instructions applicable to §§ 776.012, 776.031, or 776.041, Fla....

...Marshall's next claim is that the trial court erred in instructing the jury that self-defense was unavailable to felony murder and third-degree murder where the underlying felonies were respectively burglary and aggravated battery. We find no error. Under section 776.041(1), Florida Statutes (1987), self defense is legally unavailable to a person who "[i]s attempting to commit, committing, or escaping from the commission of, a forcible felony." Section 776.08 specifically defines "forcible felony" to include both burglary and aggravated battery. The meaning of the plain words is clear, and the trial court correctly refused the instruction. Cf. Perkins v. State, 576 So.2d 1310 (Fla. 1991) (holding drug trafficking was not a forcible felony within the meaning of section 776.041(1) where it was not included in statutory definition or otherwise included use or threat of force as an element of the offense)....

...: Yes, sir. (T.R. 144) [2] We note that there are limitations upon the amount of force that one can use in self-defense. § 776.012, Fla. Stat. (1974). Similarly, the circumstances in which one may defend himself against excessive force are limited. § 776.041....

...m by instructing the jury that the use of force was not justified if appellant was committing or attempting to commit aggravated battery. In Giles v. State, 831 So.2d 1263, 1265 (Fla. 4th DCA 2002), we held that this instruction, which is based upon section 776.041, Florida Statutes (2002), was applicable only in circumstances where the person claiming self-defense is engaged in another independent forcible felony at the time....

...mit aggravated battery. At trial, the trial court instructed the jury on Cleveland's self-defense claim. However, the trial court also gave an instruction on the forcible felony exception to self-defense. The forcible felony instruction was based on section 776.041(1), Florida Statutes (2002), which is applicable only in circumstances where the person claiming self-defense is engaged in another independent forcible felony at the time....

...felony. In the instant case, the trial court's instruction on the forcible felony exception to self-defense was erroneous because Cleveland was charged with only one forcible felony, the alleged aggravated battery. Giles, 831 So.2d at 1265. Giving a section 776.041(1) instruction where the only charge against Cleveland was the alleged aggravated battery, an act he claimed was done in self-defense, would improperly negate the self-defense claim. Id. at 1266. Although Cleveland did not make an objection at trial to the section 776.041(1) instruction, the giving of the instruction to the jury constitutes fundamental error....

...uction given, and seeks reversal of his conviction on that basis. The section in question may be given when there is evidence that the defendant may have been the initial aggressor, and appears as follows in the Standard Jury Instructions: Aggressor § 776.041, Fla....

...[1] More importantly, *1176 before today's decision, in the absence of a contemporaneous objection — as in this case — every court in Florida has uniformly found that giving this instruction constitutes fundamental error and warrants a new trial. [2] The forcible felony exception instruction is based on section 776.041(1), Florida Statutes (2002), and should only be given when a defendant claiming self-defense is also charged with a separate forcible felony....

...The trial court instructed the jury that "the use of force likely to cause death or great bodily harm is not justifiable if you find: 1. Nelson M. Velazquez was attempting to commit, committing, or escaping after the commission of Attempted Second Degree Murder with a Weapon." This instruction, based on section 776.041(1), Florida Statutes (2002), "is applicable only in circumstances where the person claiming self-defense is engaged in another independent forcible felony at the time." Cleveland v....

...e victim was attempting to murder him or to commit aggravated battery, burglary of petitioner's conveyance with a battery, or robbery against him. At trial, defense counsel did not object when the trial court gave the following instruction, based on section 776.041(1), Florida Statutes (1999) [1] : However, the use of force likely to cause death or great bodily harm is not justifiable if you find: Demetrius Fair was attempting to commit, committing or escaping after the commission of robbery....

...All time requirements of the Florida Rules of Appellate Procedures shall run from the date of this opinion. If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent him on appeal. SHAHOOD and MAY, JJ., concur. NOTES [1] Regarding the defense of self-defense, section 776.041 provides in pertinent part as follows: The justification described in the preceding sections of this chapter is not available to a person who: (1) Is attempting to commit, committing, or escaping after the commission of, a forcible fe...

...imminent death or great bodily harm to [himself] [herself] or another, or 2. the imminent commission of (applicable forcible felony) against [himself] [herself] or another. Insert and define applicable forcible felony that defendant alleges victim was about to commit. Aggressor . § 776.041, Fla....

...bly believes such force is necessary. See § 776.012, Fla. Stat.; Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981) ; Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985) . In some instances, the instructions applicable to §§ 776.012, 776.031, or 776.041, Fla....

...ransport people or property. Define applicable forcible felony that defendant alleges victim was about to commit. Give in all cases. A person does not have a duty to retreat if the person is in a place where [he] [she] has a right to be. Aggressor . § 776.041, Fla....

...bly believes such force is necessary. See § 776.012, Fla. Stat.; Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981) ; Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985) . In some instances, the instructions applicable to §§ 776.012, 776.031, or 776.041, Fla....

...In holding that the instruction constituted reversible error, the court stated: The instruction given improperly told the jury that the very act Giles sought to justify itself precluded a finding of justification. Essentially, the jury was instructed that [section] 776.041(1) would apply to preclude a self defense claim, when it is claimed that the acts with which the defendant is charged are themselves committed in appropriate self-defense....

...d to the issue outlined above. Appellate counsel shall, within thirty days of the appointment, file a new notice of appeal and reference this opinion in the notice of appeal. COVINGTON and WALLACE, JJ., Concur. NOTES [1] The instruction was based on section 776.041(1), Florida Statutes (2000)....

...State, 831 So.2d 1263 (Fla. 4th DCA 2002), this court held that the same language used by the trial court in this case was misleading and confusing in an aggravated battery trial where the defendant's defense was self defense. The language at issue is based on section 776.041(1), Florida Statutes, which states that use of force by an aggressor is not justified if the person is "attempting to commit, committing, or escaping after the commission of, a forcible felony." Id....

...[10] Because the defense of self-defense is legally unavailable [11] to a person who is attempting to commit, committing, or escaping from the commission of a forcible felony, Holland was not prejudiced and this claim is without merit. See Marshall v. State, 604 So.2d 799, 803 (Fla.1992); § 776.041, Fla....

...ERIC GRIER was attempting to commit, committing or escaping after the commission of Second Degree Murder or Manslaughter or Aggravated Battery. (Emphasis added). Grier claims that giving the independent forcible felony instruction mandates reversal. We agree. The forcible felony exception to self defense is predicated "on section 776.041(1) of the Florida Statutes which is applicable only in circumstances where the person claiming self-defense is engaged in another independent forcible felony at the time." Cleveland v....

...ely to cause death or great bodily harm is not justifiable if you find that [the defendant] was attempting to commit, committing or escaping after the commission of premeditated murder or murder in the second degree, or manslaughter." It is based on section 776.041(1), Florida Statutes, which "is applicable only in circumstances where the person claiming self-defense is engaged in another independent forcible felony at the time." Cleveland v....

...rror where the defendant was claiming self-defense. The court stated: The instruction improperly told the jury that the very act Giles sought to justify itself precluded a finding of justification. Essentially, the jury was instructed that [section] 776.041(1) would apply to preclude a self-defense claim, when it is claimed that the acts with which the defendant is charged are themselves committed in appropriate self-defense....

...However, the type of force has no bearing upon the resolution of this issue, and, moreover, even though Giles' counsel objected to the instruction, this court held in Giles that the error in that case constituted fundamental error. The instruction given by the court ( see infra ) is based on section 776.041(1), Fla....

...commit, committing, or escaping after the commission of, a forcible felony[.] While the charged offense of aggravated battery is indeed a "forcible felony" under section 776.08, Florida Statutes, this court noted in Giles that "the plain language of section 776.041 indicates that it is applicable only under circumstances where the person claiming self defense is engaged in another, independent `forcible felony' at the time." Id....

..."is normally given in situations where the accused is charged with at least two criminal acts, the act for which the accused is claiming self defense and a separate forcible felony." Id.; see Marshall v. State, 604 So.2d 799 (Fla.1992) (holding that section 776.041 jury instruction was proper on claim of self defense to felony murder charge where underlying felonies were burglary and aggravated battery)....

...f negating the defendant's sole defense. As this court reasoned in Giles, The instruction given improperly told the jury that the very act Giles sought to justify itself precluded a finding of justification. Essentially, the jury was instructed that 776.041(1) would apply to preclude a self defense claim, when it is claimed that the acts with which the defendant is charged are themselves committed in appropriate self defense....

...His sole defense at trial was self-defense. The court instructed the jury that his use of force against the victim was not justifiable if it were to find that the defendant was "attempting to commit, committing or escaping after the commission of aggravated battery." See § 776.041(1), Fla....

...All time requirements of the Florida Rules of Appellate Procedures shall run from the date of this opinion. If Petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent him on appeal. STEVENSON, SHAHOOD and MAY, JJ., concur. NOTES [1] Section 776.041, Fla....

...danger could be avoided only through the use of that force. Based upon appearances the defendant must have actually believed the danger was real. (emphasis added). The underscored language is the "forcible felony" exception to self-defense, based on section 776.041(1), Florida Statutes (2001)....

...f-defense and, thus, instructed the jury on self-defense. However, over appellant's objection, the trial court also gave the State's requested instruction on the forcible felony exception to self-defense. The forcible felony instruction was based on section 776.041(1), Florida Statutes (2002), which by its plain language indicates that it is only applicable under circumstances where the person claiming self-defense is engaged in another independent forcible felony at the time....

...We reverse, finding Bowes properly preserved the error for our review by objection, cf. State v. Heathcoat, 442 So.2d 955 (Fla. 1983); Skipper v. State, 420 So.2d 877 (Fla. 1982). As a final note, we reject the state's contention that excusable homicide is not a defense to a third-degree non-forcible felony murder. Section 776.041(1), Florida Statutes (1985), denies a defendant the right to assert self-defense and defense of others, pursuant to sections 776.012 and 776.031, Florida Statutes (1985), as a defense in certain circumstances. This restriction, however, is statutorily limited to sections 776.012 and 776.031 and to cases in which the defendant is involved in a forcible felony. We decline to extend section *292 776.041 to restrict a defendant from asserting excusable homicide, pursuant to section 782.03, Florida Statutes (1985), as a defense to a third-degree non-forcible felony murder....

...rce likely to cause death or great bodily harm is not justifiable if you find: 1. Mister Hawk was attempting to commit, committing, or escaping after *333 the commission of aggravated battery.... (R 80) (emphasis added). This instruction is based on section 776.041(1), Florida Statutes, which states: 776.041 Use of force by aggressor.— The justification described in the preceding sections of this chapter is not available to a person who: (1) is attempting to commit, committing, or escaping after the commission of, a forcible felony.......

...the imminent commission of (applicable forcible felony) against [himself] [herself] or another. Insert and define applicable forcible felony that defendant alleges victim was about to commit. Forcible felonies are listed in § 776.08, Fla. Stat. Aggressor. § 776.041, Fla....

...bly believes such force is necessary. See § 776.012, Fla. Stat.; Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981) ; Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985) . In some instances, the instructions applicable to §§ 776.012, 776.031, or 776.041, Fla....

...transport people or property. Define applicable forcible felony that defendant alleges victim was about to commit. Give in all cases. A person does not have a duty to retreat if the person is in a place where [he] [she] has a right to be. Aggressor. § 776.041, Fla....

...bly believes such force is necessary. See § 776.012, Fla. Stat.; Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981) ; Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985) . In some instances, the instructions applicable to §§ 776.012, 776.031, or 776.041, Fla....

...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 force likely to cause death or great bodily harm is not justifiable if the defendant is attempting to commit or committing a forcible felony....

...["Davis"], filed this petition for writ of habeas corpus pursuant to Florida Rule Appellate Procedure 9.141(c), alleging that his appellate counsel was ineffective for failing to argue on direct appeal that the trial court erred by overruling his objection and by giving a jury instruction based on section 776.041, Florida Statutes, effectively negating his defense of self-defense....

...at bodily harm is not justifiable if you find Charles Davis was attempting to commit or committing an aggravated battery upon an elderly person over the age of 65 years.... Davis timely objected at trial that the instruction, which was based on *334 section 776.041(1), Florida Statutes (2001), [1] was circular and improper, as the statute precluded the use of force only where the person claiming self-defense was engaged in the commission of another independent "forcible felony." He argued that t...

...ling to raise this issue on direct appeal as fundamental error because the error in this case was well preserved. The State argues that appellate counsel was not ineffective because, as of the date of Davis' appeal, [2] no case had clearly held that section 776.041 was inapplicable if the only felony involved was the felony comprising the use of self-defense....

...g that occurred when both the defendant and the decedent were engaged in an attempt to traffic in cocaine and the decedent was the first to use deadly force? After finding that trafficking in cocaine was not a "forcible felony" within the meaning of section 776.041(1), Florida Statutes, the supreme court decided that self-defense was an available defense....

...another, independent "forcible felony" at the time. See Perkins v. State, 576 So.2d 1310 (Fla.1991). Thus an armed robber cannot claim that he shot the intended victim in justifiably defending himself from an armed attack by the *335 victim himself. Section 776.041(1) plainly does not apply when it is claimed that the acts with which the defendant is charged are themselves committed in appropriate self-defense....

...objective standard of reasonableness). At the time the initial brief in this case was filed, the Giles line of cases did not exist. However, the Florida Supreme Court's opinion in Marshall v. State, 604 So.2d 799 (Fla.1992), supported the use of the section 776.041(1), Florida Statutes, instruction where the underlying forcible felony is both battery and aggravated battery....

...Furthermore, a dissent argues what the law should be, not what the law is. Thus, I would hold that appellate counsel was not ineffective for failing to anticipate the evolution in the law relating to this jury instruction. NOTES [1] The statute provides: 776.041 Use of force by aggressor — The justification described in the preceding sections of this chapter is not available to a person who: (1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony.......

...transport people or property. Define applicable forcible felony that defendant alleges victim was about to commit. Give in all cases. A person does not have a duty to retreat if the person is in a place where [he] [she] has a right to be. Aggressor. § 776.041, Fla....

...bly believes such force is necessary. See § 776.012, Fla. Stat.; Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981) ; Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985) . In some instances, the instructions applicable to §§ 776.012, 776.031, or 776.041, Fla....

...York's convictions and sentences are reversed, and the case is remanded for a new trial. Reversed and remanded for new trial. DAVIS, J., and THREADGILL, EDWARD F., Senior Judge, Concur. NOTES [1] The erroneous language in the instruction was based on section 776.041(1), Florida Statutes (2001), which provides, in pertinent part, that the defense of justifiable use of force "is not available to a person who ......

...Williams's defense was that he hit the victim in self-defense. The trial judge gave the standard jury instruction on the justifiable use of nondeadly force. See Fla. Std. Jury Instr. (Crim.) 3.6(G). The instruction contained the following language drawn from sections 776.041(1) and (2), Florida Statutes (2004), which concern situations when the defense of justifiable use of force is not available: The use of force not likely to cause death or great bodily harm is not justifiable if you find: 1....

...5th DCA 2004); Bates v. State, 883 So.2d 907, 907-08 (Fla. 2d DCA 2004); Velazquez v. State, 884 So.2d 377, 377-78 (Fla. 2d DCA 2004); Baker v. State, 877 So.2d 856, 857 (Fla. 2d DCA 2004); Zuniga v. State, 869 So.2d 1239, 1239-40 (Fla. 2d DCA 2004). To give the section 776.041(1) jury instruction in a case such as this is to commit fundamental error....

...f offense). [1] However, self-defense is statutorily unavailable to a person who: (1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or (2) Initially provokes the use of force against himself or herself, § 776.041(1) & (2), Fla....

...tion was unavailable to Vila based upon one or both of these statutory exceptions. That was error, as it is within the province of the jury to make the determination as to whether the defendant surrendered *1113 his right to self-defense pursuant to section 776.041....

...State, 127 Fla. 243 , 168 So. 810, 811 (1936). The forcible-felony instruction on self defense explains that a claim of self defense is not available to a defendant who is attempting to commit, committing, or escaping after the commission of a forcible felony. § 776.041, Fla....

...Std. Jury Instr. (Crim.) 3.6(f) (2011). Its plain language makes clear this instruction should be given only when the person is engaged in another, independent “forcible felony” at the time that person allegedly acted in self defense. Although section 776.041(1) disallows self defense to a person “attempting to commit, committing, or escaping after the commission of a forcible felony,” the decisional law holds the statute applies only when the defendant is charged with a separate independent felony....

...Morgan does not challenge his two convictions of robbery with a firearm. . Had Morgan been charged with attempting to commit, committing or escaping after the commission of a forcible felony at the time of the shooting, his right to self-defense would have been circumscribed. See § 776.041, Fla....

...Stat. (2009). Another provision states, however: The justification described in the preceding sections of this chapter is not available to a person who: (1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony[.] § 776.041(1), Fla. Stat. (2009). Although a "forcible felony," as used in this chapter, includes aggravated battery, see section 776.08, Florida Statutes (2002) and (2009), "the plain language of section 776.041 show[s] that it is applicable only under circumstances where the person claiming self-defense is engaged in another, independent `forcible felony' at the time." Giles v....

...Giles' case, like Appellant's, was not one where the alleged aggravated battery occurred while the defendant was attempting to commit, committing, or escaping after the commission "of some other independent forcible felony." Thus, it clearly was error under section 776.041(1) in Giles' and Appellant's trials to give the challenged instruction. See Giles, 831 So.2d at 1265; see Marshall v. State, 604 So.2d 799, 803 (Fla.1992) (holding that the section 776.041(1) jury instruction was proper on a claim of self-defense to the charge of felony murder, where the underlying felonies were burglary and aggravated battery); Davis v....

...1st DCA 2004). Giles explained why the instruction at issue prejudiced the defense: The instruction given improperly told the jury that the very act Giles sought to justify itself precluded a finding of justification. Essentially, the jury was instructed that 776.041(1) would apply to preclude a self-defense claim, when it is claimed that the acts with which the defendant is charged are themselves committed in appropriate self-defense....

...ruction given by the trial judge over a defense objection. He suggests the instruction given by the court was circular in nature and, thus, vitiated his defense. We agree. The instruction complained of by the defendant was taken from the language of section 776.041(1), Florida Statutes (2002), [1] which concerns situations where the use of deadly force is not justified....

...Or 2: [the defendant], initially provoked the use of force against himself ... (emphasis added). The defendant suggests this circular instruction negated his only defense, that of self-defense, to the charged offenses. We have recently re-emphasized that fundamental error results when a trial court gives the section 776.041(1) jury instruction in cases where the defendant is charged with an offense as to which the defendant relies on self-defense....

...Where a defendant is charged only with an aggravated battery, *864 and the defendant claims that the aggravated battery was in self-defense, giving the instruction improperly negates the self-defense claim. Id. Williams v. State, 901 So.2d 899, 900 (Fla. 4th DCA 2005). Simply put, section 776.041(1) "does not apply when it is claimed that the acts with which the defendant is charged are themselves committed in appropriate self-defense." McGahee v....

...In Marshall, the defendant was charged with felony murder where the underlying felonies were burglary and aggravated battery. 604 So.2d at 803. At trial, the defendant argued self-defense with regard to the felony murder charge. At the end of trial, the court instructed the jury using the language contained in section 776.041(1), Florida Statutes....

...The court found the instruction proper where a defendant is charged with felony murder and the underlying felony is a "forcible felony." Id. at 803. Thus, "self defense is legally unavailable to a person who `[i]s attempting to commit, committing, or escaping from the commission of, a forcible felony.'" Id. (quoting § 776.041(1), Fla. Stat.) The defendant claimed self-defense with respect to each offense, leaving no separately charged "forcible felony" to cause section 776.041(1) to apply. See Bevan v. State, 908 So.2d 524 (Fla. 2d DCA 2005) (section 776.041(1) instruction inapplicable where the defendant was charged with two offenses, both of which he argued were committed in self-defense)....

...We agree, under the facts of this case, that the forcible felony instruction could have been given as to counts III and IV. The evidence would have supported a jury instruction that the use of force was not justified if it found the defendant was escaping after the commission of a forcible felony. § 776.041(1)....

...The Hudson court cited Perkins v. State, 576 So.2d 1310 (Fla.1991), wherein the supreme court was asked to decide whether Perkins could raise the defense of self-defense, because he was charged with killing a man with whom he had negotiated a drug deal, and section 776.041(1), Florida Statutes, precludes a claim of self-defense if a defendant uses deadly force while committing a forcible felony....

...or Aggravated Battery. [e.s.] This instruction, which is totally circular in nature, improperly told the jury that the very acts defendant sought to justify themselves *11 precluded a finding of justification. The instruction was obviously based on section 776.041(1), Florida Statutes (1991): 776.041 Use of force by aggressor....

...But the statute applies only when the person claiming self-defense is engaged in another, independent "forcible felony" at the time. See Perkins v. State, 576 So.2d 1310 (Fla. 1991). Thus an armed robber cannot claim that he shot the intended victim in justifiably defending himself from an armed attack by the victim himself. Section 776.041(1) plainly does not apply when it is claimed that the acts with which the defendant is charged are themselves committed in appropriate self-defense....

...the first degree or attempted murder in the first degree. Armed attempted murder in the second degree, or attempted second degree murder, aggravated battery, aggravated assault, battery or assault. We have previously held this instruction, based on section 776.041(1), Florida Statutes (2004), to be fundamental error in Estevez v....

...is normally given in situations where the accused is charged with at least two criminal acts, the act for which the accused is claiming self defense and a separate forcible felony." Id.; see Marshall v. State, 604 So.2d 799 (Fla. 1992) (holding that section 776.041 jury instruction was proper on claim of self defense to felony murder charge where underlying felonies were burglary and aggravated battery)....

...ry that "the use of force likely to cause death or great bodily harm is not justifiable if you find (1) Cedric Houston was attempting to commit, committing, or escaping after the commission of aggravated battery." This instruction, which is based on section 776.041(1), Florida Statutes (2003), is applicable only under circumstances where a defendant claiming self-defense is engaged in another independent forcible felony at the time....

...The instruction to the jury read, "the use of force likely to cause death or great bodily harm is not justifiable if you find: Henry Blanton was attempting to commit, committing, or escaping after the commission of a forcible felony." This instruction, which is founded upon section 776.041, Florida Statutes (2003), essentially limits a defendant's use of self-defense....

...Accordingly, in this case, it was necessary and proper for the court to inform the jury that Appellant both did (if he was the found to be the initial aggressor) and did not (if Perkins was found to be the initial aggressor) have a duty to retreat. Compare § 776.041(2)(a), Fla....

...ng. However, they contend that they are entitled to raise the defense of self-defense, § 776.012, Fla. Stat. (1987), to the felony murder charges because the victim was shot only to prevent him from killing them. While recognizing that, pursuant to section 776.041, Fla....

...unted."); Martinez v. State, 413 So.2d 429 (Fla. 3d DCA 1982) (robbery and kidnapping foreseeable consequences of a conspiracy to participate in a large drug transaction). *539 Accordingly, because drug trafficking is a forcible felony as defined in section 776.041, we hold that the defense of self-defense is not available to these defendants....

...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. . . . (Emphasis added). This instruction is based on section 776.041(1), Florida Statutes (2003), which provides that the justification of self-defense or defense of others is not available to a person who "[i]s attempting to commit, committing, or escaping after the commission of, a forcible felony." The jury found Sloss guilty....

...(2003) (delineating the circumstances in which an individual can justifiably use force against another in self-defense); § 776.031 (delineating the circumstances in which an individual can justifiably use force against another in defense of others). But see § 776.041 (restricting the circumstances in which an individual, who was the aggressor, can justify the use of force as self-defense or defense of others)....

...State, 981 So.2d 449 (Fla.2008), which addressed the forcible felony exception to self-defense. In relevant part, the forcible felony exception provides that a defendant may not avail himself of the defense of self-defense if he is engaged in attempting, committing, or escaping after the commission of a forcible felony. § 776.041(1), Fla....

...5th DCA 1998))). However, the legislature has modified a defendant’s right to have the jury consider the defense of self-defense when the defendant is engaged in a forcible felony at the time of the alleged self-defense. The forcible felony exception—section 776.041(1), Florida Statutes (2000)—provides that self-defense is not available as a defense if it occurred while the defendant was “attempting to commit, committing, or escaping after the commission of a forcible felony....” Thus, as a...

...(2008) (stating that “[a] person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force . . . .”); § 776.041(2), Fla....

...In addition to providing a defense to criminal charges, chapter 776 also provides immunities from criminal prosecution and civil actions for conduct justified under sections 776.012, 776.013, and 776.031. See § 776.032(1), Fla. Stat. (2010). However, section 776.041, “Use of force by aggressor,” provides an exception to the above discussed defenses and immunities: The justification described in the preceding sections of this chapter is not available to a person who:...

...(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force. § 776.041, Fla....

...The relevant statutory language provides that “the justification described in the preceding sections . . . is not available to a person who: [i]nitially provokes the use of force against himself or herself, unless . . . he or she has exhausted every reasonable means to escape . . . .” § 776.041(2)(a), Fla. Stat....

...aggravated assault." [2] Analysis The forcible felony instruction precludes a claim of self defense in two situations. First, where the person claiming self defense is attempting to commit, committing, or escaping after committing a forcible felony. § 776.041(1), Fla. Stat. (2007). Second, where the person claiming self defense initially provoked the use of force. [3] § 776.041(2)....

...The instruction at issue, however, does not involve a failure to instruct on the defense of self-defense. [3] As in Sloss, the jury received that instruction. What is at issue here is an additional instruction in avoidance of the affirmative defense. See § 776.041(1), Fla....

...The forcible felony exception instructs that the "use of force likely to cause death or great bodily harm is not justifiable if you find that [the defendant] was attempting to commit, committing, or escaping after the commission of, a forcible felony." The exception is based on section 776.041(1), Florida Statutes (2001), and is only applicable where the person claiming self-defense is engaged in another independent forcible felony at the time....

...instruction of the other requested felonies. Additionally, for purposes of retrial, we note a problem with a separate portion of this same self-defense instruction. The portion of the self-defense instruction we address is based upon the wording in section 776.041(1), Florida Statutes (2000), which states that the defense of justifiable use of force likely to cause death or great bodily harm is not available to a person who "[i]s attempting to commit, committing, or escaping after the commissio...

...The instruction stated: However, the use of force likely to cause death or great bodily harm is not justifiable if you find: 1. DAVID BROZEY was attempting to commit, committing, or escaping after the commission of Murder — Second Degree. . . . (Emphasis added.) This court has held that the inclusion of the section 776.041(1) instruction is erroneous when a defendant has been charged with only a single forcible felony....

...use appellant was not entitled to receive the self-defense instruction at trial.). A copy of this opinion shall be filed with the trial court and treated as the notice of appeal. PETITION GRANTED. PLEUS, C.J. and SHARP, W., J., concur. NOTES [1] See § 776.041, Fla....

...providing the necessary context in evaluating the State’s case. Wright, 19 So.3d at 293 . Justification for using deadly force in self defense, which includes the “stand your ground” defense, does not apply to a person who provokes the attack. § 776.041(2), Fla....

...Finally, appellant argues that the court committed fundamental error in instructing the jury that appellant could not use non-deadly force if he was engaged in the commission of the offenses charged, because this instruction effectively negated his claim of self-defense. This self-defense instruction derives from section 776.041(1), and we explained in Rich v....

...Following resentencing and a subsequent appeal, Clark has now filed a petition alleging that his appellate counsel was ineffective in failing to argue in the direct appeal that fundamental error occurred when the jury was instructed regarding the forcible-felony-exception to a claim of self defense. See § 776.041(1), Fla....

...Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee. MONACO, J. The sole issue presented by this appeal is whether the trial court erred in giving the forcible felony exclusionary charge described in section 776.041(1), Florida Statutes (2002), as part of the standard self-defense jury instruction....

...ourt to instruct on the "forcible felony exception to self-defense" in a case where there is no evidence that the defendant was engaged in a separate forcible felony other than the one charged. I believe this holding to be inconsistent with the law. Section 776.041(1), Florida Statutes, provides that the justification of self-defense or defense of others is not available to a person who "[i]s attempting to commit, committing, or escaping after the commission of, a forcible felony." By its expres...

...is charged. If the jury believes the third party eye-witness accounts, and concludes that the defendant was already engaged in the commission of a forcible felony (in this case, committing premeditated murder), when the victim pulled the gun, I read section 776.041(1), Florida Statutes, as prohibiting the defendant from justifying the completion of his crime as self-defense....

...ny is charged. E.g., Martinez v. State, 933 So.2d 1155 (Fla. 3d DCA 2006); review granted, 959 So.2d 717 (Fla.2007). But that's not the problem. The forcible felony exception is supposed to negate the defense of self-defense — that's the reason for section 776.041(1)....

force. § 776.012(1)–(2), Fla. Stat. (2014). Section 776.041, however, provides an exception to the justifiable

...The court told the jury that "the use of force likely to cause death or great bodily harm is not justifiable if you find that John Swanson was attempting to commit, committing, or after escaping the commission of aggravated battery." This instruction, based on section 776.041(1), Florida Statutes (2003), "is applicable only in circumstances where the person claiming self-defense is engaged in another independent forcible felony at the time." Cleveland v....

...However, under section 776.012, there was no requirement that the defendant not have been engaged in unlawful activity, but the defendant must prove the deadly force was necessary to prevent “imminent death or great bodily harm.” § 776.012(1), Fla. Stat. (2009) (emphasis added). Further, section 776.041, titled “Use of force by aggressor,” states the “justification described in the preceding sections of this chapter is not available to a person who: ......

...nent danger” and “he or she has exhausted every reasonable means to escape the danger other than the use of force,” or “withdraws from physical contact with the assailant” and “indicates clearly ... that he or she desires to withdraw.” § 776.041(2)(a)-(b), Fla. Stat. (2009). *261 Here, instructions reflecting sections 776.012(1), 776.013(3), and 776.041(2) were read to the jury....

...The Forcible-Felony Exception Appellant contends that it was improper for the court to instruct the jury on the forcible-felony exception because it negated his self-defense claim. We agree. The instruction on the forcible-felony exception is derived from section 776.041, Florida Statutes (2010), which provides that a defendant is not justified in using force against the victim if the defendant “[i]s attempting to commit, committing, or escaping after the commission of, a forcible felony ....” § 776.041(1), Fla....

...d failed to repay a debt. According to appellant, he had come to the victim's house to repay the money he owed, when the victim pulled out a gun, and appellant then shot the victim in self defense. The forcible felony defense instruction is based on section 776.041(1), Florida Statutes (2000), which provides that the use of force in self defense is not available to a person who "is attempting to commit, committing, or escaping after the commission of, a forcible felony...." As we explained in Giles v....

...The state's argument would be correct if this statute had, for example, been previously construed by this court or the Florida Supreme Court to not require a separate forcible felony; however, that was not the case here. In fact, as is apparent from Giles, prior Florida Supreme Court decisions had indicated section 776.041(1) as requiring a separate forcible felony....

...me of the trial would have been different. The forcible-felony exception provides that self-defense is not available as a justification if the defendant "[i]s attempting to commit, committing, or escaping after the commission of, a forcible felony." § 776.041, Fla....

...4th DCA 2002). In re Standard Jury Instructions in Criminal Cases (2007-3), 976 So.2d 1081 (Fla.2008). In Giles, 831 So.2d 1263, the Fourth District held that it was fundamental error for a trial court to issue an erroneous jury instruction incorporating section 776.041(1) of the aggressor instruction where the defendant was not charged with a contemporaneous independent forcible felony....

...the charge "was not one where the alleged [forcible felony] occurred while [the defendant] was attempting to commit, committing, or escaping after the commission of some other independent forcible felony." Id. at 1265. However, the applicability of section 776.041(2) does not follow the same condition as section 776.041(1) insofar as there is no requirement for a contemporaneous independent forcible felony in the giving of the section 776.041(2) instruction. See Martinez v. State, 981 So.2d 449, 452 (Fla.2008). Specifically, section 776.041 "[s]ubsection (2) precludes the initial aggressor from asserting self-defense where he or she is the individual who provoked the use of force" contemporaneously to the actions of the victim to which the defendant claims self-defense....

...Id. Here, the trial court properly instructed the jury as to the aggressor instruction of the Justifiable Use of Force because there was evidence in the record that Johnson may have initially provoked the use of force against himself. [1] See *1150 § 776.041(2), Fla....

...committing, or escaping after the commission of felony battery and/or aggravated assault. " Appellant now contends the above-quoted jury instructions constituted fundamental error. We agree. The complained-of jury instructions have their genesis in section 776.041, Florida Statutes (2003), entitled "Use of force by aggressor," which provides, among other things, that the use of force is not available as a defense to one "who ....

...[i]s attempting to commit, committing, or escaping after the commission of, a forcible felony." See, e.g., Giles v. State, 831 So.2d 1263, 1265 (Fla. 4th DCA 2002). Both crimes with which appellant was charged qualify as a "forcible felony." § 776.08, Fla. Stat. The plain language of section 776.041(1), though, is such that the instruction is appropriately applied "only under circumstances where the person claiming self-defense is engaged in another, independent `forcible felony.'" Giles, 831 So.2d at 1265 (citing Perkins v....

...s in Shepard v. Crosby, 916 So.2d 861 (Fla. 4th DCA 2005), review denied sub nom. McDonough v. Shepard, 930 So.2d 622 (Fla.2006), and Ruiz v. State, 900 So.2d 733 (Fla. 4th DCA 2005), holding that the giving of a standard instruction patterned after section 776.041(1) is error unless there is a separate, independent forcible felony for which the defendant is not claiming self-defense....

...kely to cause death or great bodily harm is not justifiable if you find John Paul Moore was attempting to commit, committing, or escaping after the commission of aggravated battery as has been previously defined." This instruction, which is based on section 776.041(1), Florida Statutes (2002), is applicable only under circumstances where a defendant claiming self-defense is engaged in another independent forcible felony at the time....

...discussed below. We decline to authorize for publication and use the Committee’s proposed note to trial judges in both instructions regarding the applicability of the forcible felony instruction. The forcible felony instruction is based on section 776.041(1), Florida Statutes (2015), and instructs jurors that a defendant’s use or threatened use of force is not justified if he or she attempted to commit, committed, or was in the process of escaping from the commission of a forcible felony....

...applicable forcible felony that defendant alleges victim was about to commit, but omit any reference to burden of proof. See Montijo v. State, 61 So. 3d 424 (Fla. 5th DCA 2011). Forcible felonies are listed in § 776.08, Fla. Stat. Aggressor. § 776.041, Fla....

...at of force] is necessary. See § 776.012, Fla. Stat.; Ivester v. State, 398 So. 2d 926 (Fla. 1stst DCA 1981); Jackson v. State, 463 So. 2d 372 (Fla. 5thth DCA 1985). In some instances, the instructions applicable to §§ 776.012, 776.031, or 776.041, Fla....

...“Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest. “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property. Aggressor. § 776.041(1), Fla....

...after the commission of (applicable forcible felony listed in § 776.08, Fla. Stat.). Give the elements of the applicable forcible felony but omit any reference to burden of proof. See Montijo v. State, 61 So. 3d 424 (Fla. 5th DCA 2011). Aggressor. § 776.041(2), Fla....

...-  Define applicable forcible felony that defendant alleges victim was about to commit. Give in all cases. A person does not have a duty to retreat if the person is in a place where [he] [she] has a right to be. Aggressor. § 776.041, Fla....

...reasonably believes such force is necessary. See § 776.012, Fla. Stat.; Ivester v. State, 398 So. 2d 926 (Fla. 1st DCA 1981); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985). In some instances, the instructions applicable to §§ 776.012, 776.031, or 776.041, Fla....

...the use of that [force] [or] [threat of force], although as I have previously explained, the defendant had no duty to retreat. Based upon appearances, the defendant(defendant) must have actually believed that the danger was real. Aggressor. § 776.041(1), Fla....

...escaping after the commission of a[n] (applicable forcible felony listed in § 776.08, Fla. Stat.). Give the elements of the applicable forcible felony but omit any reference to burden of proof. Montijo v. State, 61 So. 3d 424 (Fla. 5th DCA 2011). Aggressor. § 776.041(2), Fla....

...or to prevent the imminent commission of a forcible felony .... Exceptionally, however, the justification "is not available to a person who . . . is attempting to commit, committing, or escaping after the commission of, a forcible felony." § 776.041(1)....

...2d 201, 204 (Fla. 1976) (holding that when defendant was charged with premeditated murder, the trial judge's instruction on felony murder "was warranted by the evidence" (quoting Larry v. State, 104 So. 2d 352, 354 (Fla. 1958))). We conclude that section 776.041(1)—providing that self-defense as defined in section 776.012 is unavailable to someone who "is attempting to commit, committing, or escaping after the commission of, a forcible felony"—is satisfied in Cook's case because the re...

sole defense. The instruction was based on section 776.041, Florida Statutes (2002), which provides in

...Instead, only one or the other circumstance is required-there was no means of escape other than the use of deadly force, or the provoking person withdrew from physical contact or unequivocally indicated his desire to withdraw from the confrontation and the alleged victim continued or resumed the use of force. See § 776.041 (2), Fla....

...ANALYSIS The jury instruction at the heart of this appeal is commonly known as the forcible-felony exception to self-defense. It is contained within Florida Standard Jury Instruction (Crim.) 3.6(f) titled "Justifiable Use of Deadly Force." Its statutory point of origin is section 776.041, Florida Statutes (2003)....

...attery which can be proven by a mere touching. [6] *1032 We vacate the sentence imposed and remand this cause to the trial court for a new sentencing consistent with this opinion. The defendant shall be present at the new sentencing. NOTES [1] Under section 776.041(1), Florida Statutes (1987), the defense of self-defense is not available to a person who is "attempting to commit, committing or escaping after the commission of a forcible felony...." [2] This is the exact same language found in section 775.082(9)(a)1....

...In Giles , the same instruction was given, and this court found it to be “misleading and confusing such that the effect was to negate Giles’ only defense to the charge of aggravated battery.” Id. at 1265 . This court stated: [T]he plain language of section 776.041 indicates that it is applicable only under circumstances where the person claiming self-defense is engaged in another, independent “forcible felony” at the time.......

...See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986). We reverse Graves’s conviction for aggravated assault and remand for new trial. Reversed and Remanded For New Trial. FARMER and TAYLOR, JJ., concur. . The language of this instruction is based on section 776.041(1), Florida Statutes (2002).

...lse may have been the initial cause of the use of deadly force. The instruction as read could be reasonably understood to mean appellant was not entitled to assert self defense based upon the actions of one of his friends. 3 This is not the law. See § 776.041, Fla....

"unnecessarily" to the instruction pertaining to section 776.041(2)(a), Florida Statutes (2018). We agree with

PER CURIAM. Affirmed. See § 776.041(2), Fla....

...Alternatively, the objection to the forcible felony 2 instruction would have been preserved for appellate review even if the court overruled the objection. The forcible felony exception instruction at issue in this appeal derives from section 776.041(1), Florida Statutes (2014), which provides that the justification of use of force is not available to a person who “[i]s attempting to commit, committing, or escaping after the commission of ....

...The Fourth District Court of Appeal reversed finding the forcible felony jury instruction inapplicable and ultimately deprived the defendant of his theory of self defense. The Fourth District Court of Appeal thoroughly explained: The forcible felony defense instruction is based on section 776.041(1), Florida Statutes (2000), which provides that the use of force in self defense is not available to a person who “is attempting to commit, committing, or escaping after the commission of, a forcible felony....” As we explained in Giles v....

...The state’s argument would be correct if this statute had, for example, been previously construed by this court or the Florida Supreme Court to not require a separate forcible felony; however, that was not the case here. In fact, as is apparent from Giles , prior Florida Supreme Court decisions had indicated section 776.041(1) as requiring a separate forcible felony....

...unts to fundamental error, compelling reversal despite the lack of an objection at trial). Stoute found that Giles was not a change in the law, as prior Florida Supreme Court decisions never construed the forcible felony defense instruction based on section 776.041(1), Fla....

” Id. at 1021. Further, in both section 776.041(2)(a), Florida Statutes (2010), and the standard

...Instead, only one or the other circumstance is required-there was no means of escape other than the use of deadly force, or the provoking person withdrew from physical contact or unequivocally indicated his desire to withdraw from the confrontation and the alleged victim continued or resumed the use of force. See § 776.041 (2), Fla....

...inward-opening door, shielding himself from the deceased’s repeated punches—had “exhausted all reasonable means of escape.” This quote is redolent of a different statute, which the circuit court also may have had in mind, and which we now address. Section 776.041, Florida Statutes, completely forecloses the justification and immunity we have been discussing for someone who “[i]nitially provokes the use or threatened use of force against himself or herself, unless: (a) Such force or thre...

...At all 4 that conclusion. But as we already mentioned, the circuit court also found that both criteria set out in paragraph (a) had been met. Cf. State v. Floyd, 186 So. 3d 1013, 1021 (Fla. 2016) (explaining that the standard jury instruction that pertains to section 776.041(2)(a) “accurately communicate[s] the law to the jury” as an exception the initial aggressor may use to claim immunity). Section 776.041, in turn, does not foreclose Smith’s entitlement to immunity. Section 776.032(4), Florida Statutes, provides that, “[i]n a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has...

...events, there is insufficient evidence to support a finding that Smith—at the time the deceased attacked him—continued to be engaged in a forcible felony, given that Smith had already put the gun back in the pouch. We conclude on this record that the foreclosure set out in section 776.041(1) does not apply here. 5 Ashley Moody, Attorney General, Michael Schaub, Assistant Attorney General, Tallahassee, for Respondent. 6 

...force is not justified if you find that (defendant) used [force] [or] [the threat of force] to initially provoke the [use] [or] [threatened use] of force against [himself] [herself], unless: . . . .” Fla. Std. Jury Instr. (Crim.) 3.6(f); see also § 776.041, Fla....

...defendant who was seeking an acquittal based on justifiable use of deadly force. The justifiable use of deadly force instruction given by the trial court is standard jury instruction 3.6(f), which incorporates, in relevant part, sections 776.012, 776.013, and 776.041 of the Florida Statutes....

...Section 776.012 is titled “Use of force in defense of person” and discusses general standards for self- defense. Section 776.013 discusses circumstances when a person has no duty to retreat, and includes subsection (3), the stand your ground provision. Section 776.041 is titled “Use of force by aggressor,” and it is the limiting statute when deadly force may be used by the initial aggressor. 10  Chapter 776 begins with section 776.012, the statute that addresses when the use of force is legally permissible....

...§ 776.013(3), Fla. Stat. (2010). Section 776.032 provides immunity from criminal prosecution and civil action for the justifiable use of force as permitted in sections 776.012, 776.013, and 776.031 (where the use of force is in defense of another). Section 776.041 explains that the protections provided in the preceding sections are not available to a person who: (1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or...

...with the assailant and indicates clearly to the assailant that he or she 12  desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force. § 776.041, Fla....

...himself, that person has the duty to retreat and/or withdraw from physical contact with the assailant and also clearly indicate that he wishes to withdraw and terminate the use of force before he may rely on the defenses contained in Chapter 776. See § 776.041. The jury instruction agreed to by the defendant and given by the trial court on this point, Standard Jury Instruction 3.6(f), is a compilation of the statutes contained in Chapter 776 as explained above....

...16, 2014).3 As the majority correctly states, the instruction given in this case properly encompasses the statutes governing the use of force in defense of person (section 776.012), circumstances in which there is no duty to retreat (sections 776.012 and 776.013), and use of force by an aggressor (section 776.041)....

...context and implies that the judge simply refused to allow the testimony without any justification. . The judge stated: "have you ever been convicted of a crime—of a felony or crime involving moral turpitude. That is the question.” . Fla. Stat. § 776.041 provides: "The justification described in the preceding sections of this chapter is not available to a person who: (2)(a)has [not] exhausted every reasonable means to escape such danger other than the use of force which is likely to cause...

...appellant had the right to stand his ground and defend himself. However, the State argued to the jury that appellant provoked Investigator Trowbridge by stepping in * The confusing instructions are derived from sections 776.013(3), Florida Statutes (2012), and 776.041(2), Florida Statutes (2012), which state: A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or...

...forcible felony. § 776.013(3), Fla. Stat. (2012). The justification described in the preceding sections of this chapter is not available to a person who: Initially provokes the use of force against himself or herself, . . . . § 776.041(2), Fla....

...-2- those situations in which the defendant is in his place of business and was engaged in criminal activity. Last, the FPDA opposed the Committee’s proposal to add the word “unnecessarily” to the instruction pertaining to section 776.041(2)(a), Florida Statutes (2018)....

...Whether a person may justifiably use force in response to a forcible felony that is not directed at a person is an issue that is not properly before this Court. Also, the italicized note to trial judges citing section -3- 776.041(1) is expanded to explain that the forcible felony instruction should only be given in cases where the defendant is charged with either an independent forcible felony or felony murder if the underlying felony is an independent forcible felony....

...Stat.) against [himself] [herself] [or] [another]” is added to the sentence pertaining to justification of nondeadly force in defense of a person against the imminent use or threat of imminent use of unlawful force; (2) an explanatory note is added to the instruction for “aggressor” under section 776.041(1), Florida Statutes, that it should only be given in cases -4- where the defendant is charged with either an independent forcible felony or felony murder, if the underlying felony is an i...

... “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest. “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property. Aggressor. § 776.041(1), Fla....

...Stat.). Give the elements of the applicable forcible felony but omit any reference to burden of proof. See Montijo v. State, 61 So. 3d 424 (Fla. 5th DCA 2011). The instruction may need to be modified in the event that the forcible felony at issue is not a crime against a person. Aggressor. § 776.041(2), Fla....

...only through the use of that [force] [or] [threat of force], although as I have previously explained, the defendant had no duty to retreat. Based upon appearances, (defendant) must have actually believed that the danger was real. Aggressor. § 776.041(1), Fla....

...Stat.). Give the elements of the applicable forcible felony but omit any reference to burden of proof. Montijo v. State, 61 So. 3d 424 (Fla. 5th DCA 2011). The instruction may need to be modified in the event that the forcible felony at issue is not a crime against a person. Aggressor. § 776.041(2), Fla....

...the first issue without further comment. In the second issue, Appellant contends that the trial court erred when instructing the jury as to self-defense for three separate reasons. We reach only his argument that the court erred in giving the “aggressor” instruction pursuant to section 776.041, Florida Statutes (2011), which included the requirement that Appellant was to have “exhausted every reasonable means to escape the danger,” in direct conflict with the statutory right to stand one’s ground then in effect....

...“Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest. “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property. Aggressor. § 776.041(1), Fla....

...Stat.). Give the elements of the applicable forcible felony but omit any reference to burden of proof. See Montijo v. State, 61 So. 3d 424 (Fla. 5th DCA 2011). The instruction may need to be modified in the event that the forcible felony at issue is not a crime against a person. Aggressor. § 776.041(2), Fla....

...only through the use of that [force] [or] [threat of force], although as I have previously explained, the defendant had no duty to retreat. Based upon appearances, (defendant) must have actually believed that the danger was real. Aggressor. § 776.041(1), Fla....

...Stat.). Give the elements of the applicable forcible felony but omit any reference to burden of proof. Montijo v. State, 61 So. 3d 424 (Fla. 5th DCA 2011). The instruction may need to be modified in the event that the forcible felony at issue is not a crime against a person. Aggressor. § 776.041(2), Fla....

...In so doing, the defendant “admits the commission of the criminal act with which he was charged but contends that the act was justifiable.” Martinez v. State, 981 So. 2d 449, 453 (Fla. 2008). In some circumstances, however, the Florida Legislature has prohibited the use of self-defense. Section 776.041(1), Florida Statutes (2022), provides that justifiable use of force is unavailable to a person while they are “attempting to commit, committing, or escaping after the commission of, a forcible felony[.]” The jury instruction based...

...4th DCA 1999)). 5  The forcible felony exception provides that self-defense is not available as a justification if the defendant “[i]s attempting to commit, committing, or escaping after the commission of, a forcible felony.” § 776.041(1), Fla. Stat. (2018). This exception applies only when the defendant is committing an independent forcible felony separate from the one for which he or she is claiming self-defense. Giles, 831 So. 2d at 1265 (explaining that the plain language of § 776.041(1) “indicates that it is applicable only under circumstances where the person claiming self-defense is engaged in another, independent ‘forcible felony’ at the time”)....

...lf or herself or another or to prevent the imminent commission of a forcible felony. This immunity, however, is not available if the person “[i]s attempting to commit, committing, or escaping after the commission of, a forcible felony.” § 776.041(1), Fla....

*1290Marshall v. State, 604 So.2d 799, 803 (Fla.1992); § 776.041, Fla. Stat. (1989). Holland, 916 So.2d at 760