DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

WENDELL SHERMAN CALKINS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D14-2392

[July 22, 2015]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, 

Okeechobee County; Sherwood Bauer, Jr., Judge; L.T. Case No. 

472014CF000093A.

Carey Haughwout, Public Defender, and Gary Lee Caldwell and 

Timothy Wang, Assistant Public Defenders, West Palm Beach, for 

appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. 

Melear, Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

The defendant appeals his conviction of felony battery. He argues the 

court erred in: (1) failing to instruct the jury on self-defense, (2) sustaining 

a relevancy objection on whether the victim had permission to drive the 

truck, and (3) finding no discovery violation by the State. We agree on the 

first issue and reverse for a new trial.

The State charged the defendant with aggravated battery. The charges 

arose from an altercation between the defendant and the victim, his 

nephew, which occurred when the defendant, the victim, and the truck 

owner were driving home. The victim testified that he was riding in the 

passenger seat of the truck. He yelled at the defendant because the 

defendant drove past a police officer while speeding, had consumed 

alcohol, and was driving without a license in an unregistered vehicle. 

According to the victim, the defendant pulled over to the side of the road, 

argued with him, and then “sucker punched him [o]n the side of [his] 

head.”
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The victim then punched the defendant in the face and forced him out 

of the truck. While outside, the defendant moved to the passenger side of 

the truck, grabbed a piece of wood from the back of the truck, and hit the 

victim on the side of his face. The victim attempted to move to the driver’s 

side to elude the defendant and drive away, leaving the defendant on the 

side of the road. Law enforcement did not find the wood allegedly used in 

the altercation. 

Recordings from the jail inmate phone system revealed that the 

defendant said the victim “just kept on and kept on . . . . You know, and 

you know, I popped him. And he . . . hit me in the . . . nose and busted 

my nose and my nose started bleeding. And I got out of the truck and 

grabbed him and pulled hi[m] . . . out of the truck.” 

The third passenger, the truck owner, who was in the back seat,

testified for the defendant. He testified that the victim “you know, kind of 

had a slip of the hand and it hit him here.” Then, the defendant got out 

of the truck and hit the victim with a stick before the victim drove the truck 

away. 

After closing argument, defense counsel requested a self-defense 

instruction, which the court denied. The jury found the defendant guilty 

of the lesser-included offense of battery. The court then read the parties’ 

stipulation that the defendant had a prior battery conviction. 

After further deliberation, the jury found the defendant guilty of felony 

battery. The court sentenced him to forty-two months’ imprisonment. 

From his conviction and sentence, the defendant appeals.

The defendant argues the court erred in denying his request for a selfdefense instruction as both untimely and unsupported by the evidence. 

The State responds that there was no evidence to support the self-defense 

instruction. The defendant replies that the State has conceded the

timeliness issue and the evidence did support the instruction.

We review a trial court’s decision to give or withhold a proposed jury 

instruction for an abuse of discretion. McKenzie v. State, 830 So. 2d 234, 

236 (Fla. 4th DCA 2002).

Defense counsel argued self-defense in his closing. During the State’s 

closing, the prosecutor argued self-defense did not matter because the jury 

was “not going to get a self-defense instruction at all.” After the State’s 

closing, defense counsel notified the court that he was unaware there was 
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no self-defense instruction. The court asked defense counsel why he 

previously agreed to the instructions, to which he responded that he

thought a self-defense instruction was included. 

Defense counsel then requested a self-defense instruction. The court 

denied the request, finding it came too late, and there was no competent 

evidence to support the instruction. The trial court erred on both 

accounts.

The timeliness issue is easily resolved as the State correctly agrees that 

defense counsel’s request for a self-defense instruction was timely because 

the jury had not yet retired. Ramsaran v. State, 664 So. 2d 1106, 1107 

(Fla. 4th DCA 1995). In fact, the request came before the court began

instructing the jury. The court erred in denying the request on this basis.

We also find error in the court’s decision that the evidence did not 

support a self-defense instruction. “A criminal defendant is entitled to 

have the jury instructed on the law applicable to his or her theory of 

defense where there is any evidence to support it, no matter how weak or 

flimsy.” Gregory v. State, 937 So. 2d 180, 182 (Fla. 4th DCA 2006) (first 

emphasis in original; second emphasis added) (citing numerous cases).

“‘The trial court should not weigh the evidence for the purpose of 

determining whether the instruction is appropriate.’” Charles v. State, 945 

So. 2d 579, 582 (Fla. 4th DCA 2006) (quoting Gregory, 937 So. 2d at 182).

It is not the quantum or the quality of the proof as to selfdefense that determines the requirement for giving the charge. 

If any evidence of a substantial character is adduced . . . the 

element of self-defense becomes an issue, and the jury, as the 

trier of the facts, should be duly charged as to the law thereon, 

because it is the jury’s function to determine that issue.

Garramone v. State, 636 So. 2d 869, 870 (Fla. 4th DCA 1994) (alteration 

in original) (emphasis in original) (quoting Kiernan v. State, 613 So. 2d 

1362, 1364 (Fla. 4th DCA 1993)).

Here, the truck owner testified that the victim and defendant began to 

argue, and “you know, [the victim] kind of had a slip of the hand and it hit 

him here.” So, there was testimony indicating the victim struck first. This 

was sufficient to warrant the self-defense instruction. We find no merit in 

the other issues raised.

Reversed and remanded for a new trial.
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TAYLOR and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.