final until disposition of timely filed motion for rehearing.
appeal from the Circuit Court for Miami-Dade County, Stacy D.
Glick, Judge, Lower Tribunal No. 16-11296.
J. Martinez, Public Defender, and Susan Lerner, Assistant
Public Defender, for appellant.
Moody, Attorney General, and Jeffrey R. Geldens, Assistant
Attorney General, for appellee.
FERNANDEZ, HENDON, and MILLER, JJ.
Lamar Lindo, challenges his conviction and sentence for
attempted manslaughter by act, in violation of section
782.07(1), Florida Statutes (2019). On appeal, Lindo contends
the lower tribunal erred in instructing the jury on the
forcible-felony exception to self-defense, as he was not
charged with an independent forcible felony. See
§ 776.041(1), Fla. Stat. (2019). Finding fundamental
error, we reverse and remand for a new trial.
30, 2016, Lindo, a Miami-Dade Parks, Recreation, and Open
Spaces Department employee and part-time security guard,
slept at the abode of his paramour, Nicole Mitchell. Mitchell
resided with her children in a second-floor apartment,
located above a storefront, adjacent to an expansive parking
after six o'clock the following morning, Bobby Jackson,
the father of one of Mitchell's daughters, arrived at the
home, purportedly to retrieve a pendant. Upon his arrival,
Jackson alerted the occupants of the residence to his
presence by loudly knocking on the front door. Thereafter,
Jackson exchanged text messages with Mitchell. A child
subsequently exited the home and furnished the requested
trinket to Jackson. Jackson walked to the nearby parking lot,
where Lindo's vehicle was parked.
observed Jackson in the parking lot and warned him away from
Lindo's car. Mitchell and Jackson engaged in a verbal
spar, and Lindo left the apartment and walked toward his
vehicle. Jackson violently attacked Lindo and a prolonged
struggle ensued. Jackson eventually pushed Lindo into the
vehicle, breaking the front window on the driver's side.
Lindo retrieved his legally acquired firearm from the glove
compartment of his automobile.
series of events that followed were divergently described by
the witnesses at trial. Lindo testified he "drew [his]
firearm because [he] was in danger of [his] life."
Jackson testified that he retreated, evidencing his
surrender. Nonetheless, in the moments that followed, Lindo
fired two shots, the latter of which struck Jackson,
resulting in lower-extremity paralysis. Lindo was arrested
and charged with attempted first-degree murder. The case
proceeded to a jury trial.
directed verdict motions, the lower tribunal reduced the
attempted first-degree murder charge to attempted
second-degree murder. Accordingly, the jury was instructed on
two lesser included offenses: (1) attempted manslaughter by
act; and (2) felony battery. The court further furnished the
"forcible felony" jury instruction, as follows:
However, the use and/or threatened use of deadly force is not
justified if you find that Lamar Lindo was attempting to
commit, committing, or escaping after the commission of
attempted second-degree ...