# Barnes v. State

> District Court of Appeal of Florida · May 8, 2009 · 12 So. 3d 797

URL: https://www.frixlaw.com/law-library/cases/1579777

## Case

- **Full name:** Eugene Fitzgerald BARNES, Appellant, v. STATE of Florida, Appellee
- **Court:** District Court of Appeal of Florida
- **Decided:** May 8, 2009
- **Citations:** 12 So. 3d 797; 2009 Fla. App. LEXIS 4423; 2009 WL 1254712
- **Precedential status:** Published
- **Opinion:** Opinion by Cohen
- **Judges:** Cohen, Palmer, Sawaya
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1579777

## How later opinions describe it (automated extraction)

- concluding that giving the “forcible felony” instruction, absent an independent forcible felony, was not fundamental error in a prosecution for attempted first-degree murder where defendant asserted self-defense, given evidence the victim was shot eight times, including once i…

## Opinion text

COHEN, J.
ON REMAND
On remand from the Florida Supreme Court, we have vacated and withdrawn our previously issued mandate in light of
Martinez v. State,
981 So.2d 449 (FIa,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. Stat. (1999). Trial courts have undoubtedly encountered difficulty in applying and instructing on this exception.
Martinez,
981 So.2d at 454 , makes clear that the forcible felony exception applies only in cases when the defendant engages in an independent forcible felony. Thus, the exception is very narrowly applied, and in most cases should simply be omitted from the instructions given to the jury.
Martinez
further holds that when the defendant fails to contemporaneously object and the challenged jury instruction involves an affirmative defense, as opposed to an element of the crime, “fundamental error only occurs where a jury instruction is ‘so flawed as to deprive defendants claiming the defense ... of a fair trial.’ ”
Id.
at 455 , citing
Smith v. State,
521 So.2d 106, 108 (Fla.1988). The fundamental error doctrine “should be applied only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.”
Id.
at 455, citing
Ray v. State,
403 So.2d 956, 960 (Fla.1981).
Barnes was charged with attempted murder in the first degree stemming from the shooting of Kenneth Brown. The case proceeded to trial where the jury was instructed on Barnes’ claim of self-defense. As part of that instruction, the jury was informed the use of force likely to cause death or great bodily harm was not justified if Barnes was attempting to commit, committing, or escaping after the commission of attempted murder and/or aggravated battery. Barnes did not object to the instruction. The jury subsequently convicted Barnes of attempted murder in the second degree.
After reviewing the complete record, we conclude that this is not one of those rare cases where the interests of justice compel reversal. The victim in this case was shot eight times, including once in the back while he fled from the hail of bullets. Furthermore, the State never argued to the jury that Barnes’ commission of a forcible felony in shooting Brown defeated his claim of self-defense.
AFFIRMED.
PALMER, C.J., and SAWAYA, J., concur.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1579777. Public record. Not legal advice.