01-1849 THOMAS V. STATE

State: Florida

Court: Florida Third District Court

Docket No: 01-1849 THOMAS V. STATE

Case Date: 11/27/2002

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D., 2002

ROONEY LEE THOMAS, Appellant, vs. THE STATE OF FLORIDA, Appellee.

** ** ** ** CASE NO. 3D-01-1849 LOWER TRIBUNAL NO. 00-32843 **

Opinion filed November 27, 2002. An Appeal from the Circuit Court for Miami-Dade County, Roberto M. Pineiro, Judge. Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant. Richard E. Doran, Attorney General, and Erin K. Zack, Assistant Attorney General, for appellee.

Before LEVY, GERSTEN, and GODERICH, JJ. PER CURIAM.

Rooney Lee Thomas ("defendant") appeals his conviction and sentence for aggravated battery. We reverse because the trial

court erred in its instructions to the jury. An incorrect jury instruction on the defense of justifiable use of deadly and non-deadly force constitutes fundamental error if there is a reasonable possibility that the instruction may have led to the conviction. See Pollock v. State, 818 So. 2d

654 (Fla. 3d DCA 2002); Pieczynski v. State, 516 So. 2d 1048 (Fla. 3d DCA 1987). Such an error is compounded where the

prosecutor emphasizes the lack of a threat of imminent harm during closing arguments. (Fla. 3d DCA 2002). Here, the defendant's theory of defense was justifiable force. However, the instructions read to the jury contained incorrect defense. jury and statements of the law regarding this affirmative See Pollock v. State, 818 So. 2d 654

These erroneous instructions could have misled the there is a reasonable possibility that these

instructions led to the defendant's conviction. The instructions, in conjunction with the prosecutor's

contention that no threat of imminent harm existed, acted to negate the defendant's theory of defense. Due to these

fundamental errors, the defendant's sentence and conviction must be reversed and the defendant is entitled to a new trial. See

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Pollock v. State, 818 So. 2d 654 (Fla. 3d DCA 2002). Reversed and remanded for a new trial.

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