final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; John Kastrenakes, Judge; L.T. Case No.
Haughwout, Public Defender, and Karen E. Ehrlich, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Joseph D.
Coronato, Jr., Assistant Attorney General, West Palm Beach,
Scott Hart appeals his conviction and sentence for felony
battery with a weapon. He argues that the trial court erred
in denying his request for an instruction on the justifiable
use of non-deadly force. We agree with Hart that the defense
evidence supported giving the instruction and that the error
was not harmless. Thus, we must reverse and remand for a new
physical altercation with his neighbor, Hart was charged with
aggravated battery with a deadly weapon causing great bodily
harm, permanent disability, or permanent disfigurement. Hart
utilized a serrated knife in the altercation, leaving his
neighbor with life-threatening injuries, including cuts to
the face, neck, and back of the head.
to the defense evidence at trial, Hart was involved in a
serious car accident several months prior to the altercation,
necessitating hospitalization for five days and two surgeries
to repair his broken neck. Medical personnel warned him that
he could be paralyzed if he fell or moved his neck the wrong
way. At the time of the altercation, he was wearing a hard,
stabilizing neck brace that limited his mobility. Hart
testified that he could not look down and could not turn to
the side without "turning my whole body with it pretty
further testified that, while conversing with his neighbor in
his neighbor's front yard, he commented on the
neighbor's taste in women. The neighbor responded by
grabbing Hart's neck brace and moving Hart's body by
"kind of thr[owing him] around a little bit back and
forth" before pushing him into a grill. While trying to
get his balance, Hart felt something "like a
handle" on the grill, so he picked it up and swung it at
the neighbor. Hart did not know what the object was or how
many times he struck the neighbor, and he did not see where
the strikes landed. Hart did not intend to hurt the neighbor;
he just wanted to get the neighbor off of him. Hart was
afraid the neighbor was going to kill or paralyze him.
trial court denied Hart's request for an instruction on
the justifiable use of non-deadly force, reasoning that the
victim was injured in "vital locations on the human
body, " and thus, only the instruction on the
justifiable use of deadly force was supported by the
evidence. The jury returned a verdict for the lesser included
offense of felony battery and found that Hart carried,
displayed, used, threatened, or attempted to use a weapon.
appeal, Hart challenges the trial court's denial of his
request for a jury instruction on the justifiable use of
deadly force. "The standard of review for jury
instructions is abuse of discretion." Garrido v.
State, 97 So.3d 291, 294 (Fla. 4th DCA 2012) (quoting
Zama v. State, 54 So.3d 1075, 1077 (Fla. 4th DCA
there is any evidence introduced at trial which supports the
theory of the defense, a defendant is entitled to have the
jury instructed on the law applicable to his theory, "
however weak the evidence or improbable the defense.
Larsen v. State, 82 So.3d 971, 974 (Fla. 4th DCA
2011) (citation omitted).
"Under Florida law, a person is justified in using
deadly force in self-defense only when the person reasonably
believes that such force is necessary to prevent one's
imminent death or great bodily harm or to prevent the
imminent commission of a forcible felony." Cruz v.
State, 971 So.2d 178, 182 (Fla. 5th DCA 2007). In
contrast, "[n]on-deadly force may be used when and to
the extent that a person reasonably believes that the use of
force is ...