561 So. 2d 1362 | Fla. Dist. Ct. App. | 1990
Maurice HOWARD, Appellant,
v.
The STATE of Florida, Appellee.
District Court of Appeal of Florida, Third District.
Bennett H. Brummer, Public Defender, and Leslie C. Elrod, Special Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Monique T. Befeler, Asst. Atty. Gen., for appellee.
Before HUBBART, NESBITT and GODERICH, JJ.
CONFESSION OF ERROR
PER CURIAM.
As the State properly concedes, the trial court erred in not giving the jury an instruction on defense of property, upon request of the defendant, where ample evidence existed in the record to support the giving of this instruction.
The law is clear that a defendant is entitled to have the jury instructed on the law applicable to his theory of defense where there is any evidence introduced in support thereof. Bryant v. State, 412 So.2d 347 (Fla. 1982); Palmes v. State, 397 So.2d 648 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981); Biscardi v. State, 511 So.2d 575 (Fla. 4th DCA 1987). Moreover, failure to give an instruction on a defense encompassed within the evidence is fundamental error, reviewable even in the absence of a specifically requested instruction or objection. Thomas v. State, 526 So.2d 183 (Fla. 3d DCA), review denied, 536 So.2d 245 (Fla. 1988); Tobey v. State, 533 So.2d 1198 (Fla. 2d DCA 1988), review denied, 542 So.2d 990 (Fla. 1989). Given our disposition on this point it is unnecessary to reach the defendant's remaining point on appeal.
Reversed and remanded for a new trial.