IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

TIMOTHY DONALD HELTON,               NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D13-2656

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed May 12, 2015.

An appeal from the Circuit Court for Santa Rosa County.
David Rimmer, Judge.

Nancy A. Daniels, Public Defender, and Barbara J. Busharis, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant
Attorney General, Tallahassee, for Appellee.




PER CURIAM.

      The State charged Appellant, Timothy Donald Helton, with one count of

aggravated battery and one count of simple battery arising from an incident that
occurred on May 31, 2011, involving two victims. Helton’s first trial resulted in a

hung jury, and he was retried in January 2013. The second trial yielded guilty

verdicts on both counts. The trial court reclassified the aggravated battery, a

second-degree felony, to a first-degree felony based on the jury’s specific finding

that Helton used a deadly weapon in committing the crime, and imposed a life

sentence. For the simple battery, the court sentenced Helton to time served.

         On appeal, Helton challenges only the conviction and sentence for

aggravated battery. He argues that the instructions the court gave the jury on the

justifiable use of deadly force and the duty to retreat were inconsistent and

constituted fundamental error, and that the court erred by reclassifying the

aggravated battery to a first-degree felony because use of a deadly weapon is an

element of the offense. Because we agree that fundamental error occurred, we

reverse Helton’s conviction and sentence for aggravated battery, and remand for a

new trial on that count. For that reason, we do not address the reclassification

issue.

         Helton’s only defense at trial was that he acted in self-defense, as permitted

by the “stand your ground” law.1 Accordingly, the trial court gave the standard

instructions 2 on the justifiable use of force and the circumstances under which



1
    See §776.013(3), Fla. Stat. (2011).
2
    See Fla. Std. Jury Instr. (Crim.) 3.6(f).
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Helton could stand his ground in the face of like force, or was required to retreat, if

possible. In pertinent part, the court instructed the jury as follows:

             An issue in this case is whether the defendant acted in
             self-defense. It is a defense to the offense with which
             TIMOTHY DONALD HELTON is charged if the injury
             to CRAIG RICHARD NELSON, JR resulted from the
             justifiable use deadly force.

              “Deadly force” means force likely to cause death or
             great bodily harm.

              A person is justified in using deadly force if he
             reasonably believes that such force is necessary to
             prevent imminent death or great bodily harm to himself
             or another.

              However, the use of deadly force is not justifiable if you
             find:

             1. TIMOTHY DONALD HELTON initially provoked
             the use of force against himself, unless:

             (a) The force asserted toward the defendant was so great
             that he reasonably believed that he was in imminent
             danger of death or great bodily harm and had exhausted
             every reasonable means to escape the danger, other than
             using deadly force on CRAIG RICHARD NELSON, JR.
             [or]

             (b) In good faith, the defendant withdrew from physical
             contact with CRAIG RICHARD NELSON, JR and
             clearly indicated to CRAIG RICHARD NELSON, JR
             that he wanted to withdraw and stop the use of deadly
             force, but CRAIG RICHARD NELSON, JR continued or
             resumed the use of force.

             ...

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            If the defendant was not engaged in an unlawful activity
            and was attacked in any place where he had a right to be,
            he had no duty to retreat and had the right to stand his
            ground and meet force with force, including deadly force,
            if he reasonably believed that it was necessary to do so to
            prevent death or great bodily harm to himself.

(Emphasis added).

      In Floyd v. State, 

(Fla. 1st DCA 2014), rev. granted, ____

So. 3d ____, 

(Fla. Dec. 16, 2014), and more recently in Tramel

v. State, No. 1D13-2285 (Fla. 1st DCA March ___, 2015), we held the identical

instructions constituted fundamental error because an inconsistency regarding the

duty to retreat essentially negated the defendants’ sole defense. As we reasoned in

Floyd:

            [T]he jury was instructed that if the use of deadly force is
            necessary to prevent imminent death or great bodily
            harm to oneself or others, then deadly force is justified
            without regard to any effort to retreat so long as the
            defendant is not engaged in unlawful activity. A
            defendant may not use deadly force if the defendant
            provoked another showing force; however, if the
            defendant provoked another, who then uses force so
            great as to put the defendant in fear of death or great
            bodily harm, then the defendant may use deadly force,
            but only if the defendant has first exhausted every means
            of escape. In effect, the jury instruction here provided
            that Floyd did not have to retreat before meeting deadly
            force with deadly force if in fear of death or great bodily
            harm and did have a duty to try to retreat before using
            deadly force if in fear of death or great bodily 

(emphasis in original).        Because the contradiction in the

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instructions effectively negated possible application to Floyd’s only defense—self-

defense under the “stand your ground” law—fundamental error occurred, requiring

reversal of Floyd’s convictions. 

v. State, 

, 196

(Fla. 2d DCA 1985)).

      The circumstances are the same here, constraining us to apply our holding in

Floyd and find that the contradictory justifiable-use-of-force jury instructions the

trial court gave negated Helton’s only defense and resulted in fundamental error.

The State argues that Helton’s trial counsel waived the error by affirmatively

agreeing to the instructions. Although it is possible to waive fundamental error,

see Ray v. State, 

, 960 (Fla. 1981), the record before us does not

reflect that Helton’s counsel specifically agreed to the instruction such that waiver

occurred, see Moore v. State, 

, 489 (Fla. 1st DCA 2013). In fact,

defense counsel objected to the instruction initially, pointing out the very

contradiction we now find problematic. But upon the trial court’s assurance that

the instruction read as a whole was not inconsistent, defense counsel withdrew the

objection. We are not inclined to find waiver where the trial court essentially

talked defense counsel out of an objection.

      Based on our decision in Floyd,3 we reverse Helton’s conviction and


3
  The Florida Supreme Court, having granted the State’s petition for discretionary
review of the decision in Floyd, issued an order on December 11, 2014, granting
the State’s motion to recall this court’s mandate, and staying proceedings until
                                         5
sentence for aggravated battery, and remand for a new trial on that count only.

      AFFIRMED, in part; REVERSED, in part; and REMANDED.



ROBERTS, MARSTILLER and SWANSON, JJ., CONCUR.




disposition of the petition for review. Order, State v. Floyd, No. SC14-2162 (Fla.
Dec. 11, 2014) (order staying proceedings).
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