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Lindo v. State

Florida Court of Appeals, Third District

October 23, 2019

Lamar Lindo, Appellant,
v.
The State of Florida, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An appeal from the Circuit Court for Miami-Dade County, Stacy D. Glick, Judge, Lower Tribunal No. 16-11296.

          Carlos J. Martinez, Public Defender, and Susan Lerner, Assistant Public Defender, for appellant.

          Ashley Moody, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.

          Before FERNANDEZ, HENDON, and MILLER, JJ.

          MILLER, J.

         Appellant, 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.[1] See § 776.041(1), Fla. Stat. (2019). Finding fundamental error, we reverse and remand for a new trial.

         FACTS AND BACKGROUND

         On May 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 lot.

         Shortly 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.

         Mitchell 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.

         The 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.

         During 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 ...

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