TIMOTHY DONALD HELTON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D13-2656

_____________________________/

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 

instructions2 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).

2

 
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. 

. . .

3
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, 151 So. 3d 452 (Fla. 1st DCA 2014), rev. granted, ____ 

So. 3d ____, 2014 WL 7251662 (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 harm.

151 So. 3d at 454 (emphasis in original). Because the contradiction in the 

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instructions effectively negated possible application to Floyd’s only defense—selfdefense under the “stand your ground” law—fundamental error occurred, requiring 

reversal of Floyd’s convictions. Id. (citing Carter v. State, 469 So. 2d 194, 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, 403 So. 2d 956, 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, 114 So. 3d 486, 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 

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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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