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The case of Santiago v. State, 37 Fla. L. Weekly D1257a (Fla. 2d DCA May 25, 2012) considers the recurring problems associated with the forcible felony exception to the law of self-defense.

The Santiago decision involved post-conviction relief and the claim that counsel was ineffective for failing to object to the state's requested jury instruction on the forcible felony exception to self-defense.

The court in Santiago reviewed the law of self-defense in Florida. It pointed out that a defendant is entitled to a jury instruction on the theory of defense regardless of how flimsy the evidence is to support self-defense. See Arthur v. State, 717 So. 2d 193, 194 (Fla. 5th DCA 1998). The court went on to recognize in Santiago that the Legislature has modified a defendant's right to have a jury consider self-defense if the defendant is engaged in a forcible felony at the time of the alleged self-defense.

The forcible felony exception is contained in Fla. Stat. § 776.041(1). This provides that self-defense is not available if it occurred while the defendant was attempting to commit, committing or escaping after the commission of a forcible felony. This exception to self-defense however, has significant limitations.

First, the forcible felony exception applies only when the accused is charged with at least two criminal acts, that is the act for which the accused is claiming self-defense and a separate forcible felony. See Giles v. State, 831 So. 2d 1263, 1265 (Fla. 4th DCA 2002) and Martinez v. State, 981 So. 2d 449, 453-54 (Fla. 2008). This therefore, precludes the forcible felony instruction if the self-defense act itself qualifies as a forcible felony.

Second, the defendant must be engaged in a separate and independent felonious act at the time of the alleged self-defense. Cleveland v. State, 887 So. 2d 362, 365 (Fla. 5th DCA 2004). Under this requirement, a separate and independent forcible felony that occurs at some time other than when the alleged act of self-defense occurs, will not support the forcible felony instruction to the jury.

The court in Santiago also considers a third important issue on the giving of the forcible felony instruction when multiple forcible felonies are charged. The court noted:

Thus when the defendant claims self-defense as to every offense with which he is charged, there is no separately charged "forcible felony" to trigger the application of the instruction.

In considering the facts of the particular case, the court noted that while Santiagoshot two men, killing one and seriously wounding the other, both shootings occurred at the same time and Santiago's contention was he was acting in self-defense because he believed both men were there to commit serious bodily harm on him and he feared for his life. Santiago was also charged with aggravated assault on a law enforcement officer and obstruction of an officer with violence, but these offenses occurred after the defendant left the scene of the shooting.

In analyzing the claim of self-defense, the court concluded that the theory was that the defendant believed that one of the men was reaching for a gun and therefore shot at the man in self-defense. This was sufficient evidence to justify the self-defense instruction. It also noted that those facts did not show that Santiago was engaged in a separate independent forcible felony at the time of the shooting. Because of that, trial counsel should have objected to the forcible felony instruction.

Counsel who raise self-defense must be vigilant and thorough in analyzing the evidence so as to properly object to the forcible felony exception when any of the exceptions to this instruction are present.