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Bassallo v. State - 46 So. 3d 1205 (Fla. Dist. Ct. App. 2010)


The appellate courts consistently have found fundamental error in those cases where the erroneous instruction negates the defendant's sole defense to the crime charged.


Defendant Bienvenido Bassallo, a foreman at Arrow Directional Boring, was charged with aggravated assault with a deadly weapon, following an altercation with another foreman, Curt Curtis, at the company yard. The dispute arose over some equipment that Bassallo borrowed without Curtis' permission. During the altercation, Bassallo pulled a knife, but he did not use the knife. Later he was convicted in Florida state court of aggravated assault with a deadly weapon. On appeal, he argued the trial court erred in giving a self-defense instruction that indicated the defense applied only if the victim suffered an "injury," when defendant was charged with aggravated assault and no injury occurred, which negated Bassallo's theory of defense. However, Bassallo did not object to the instruction at trial.


Was Bassallo's conviction proper?




The appellate court found fundamental error. The inclusion of the word "injury" in the instruction did not accurately and adequately state the law, because Bassallo was charged with aggravated assault, for which injury was not an element. Nor was there any evidence of injury to Curtis, the victim. Bassallo's sole defense was that he brandished a soap stone in self-defense, and the trial court's instruction effectively negated the defense. Although the State argued that an "injury" may have been psychological as well as physical, and that, here, the "injury" was the fear Curtis felt, the State argued the opposite during closing, and thereby compounded the error. The judgment was reversed and the case was remanded for a new trial.

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