CHARLES COMER, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Charles Comer received ineffective assistance of appellate counsel when his direct appeal counsel failed to raise the issue of improper jury instructions using "and/or" language in instructing the jury on assault and resisting arrest. The court granted his petition for post-conviction relief and ordered a new appellate proceeding to review these jury instruction issues.
Appellate counsel's failure to argue the improper jury instruction issue constituted ineffective assistance of counsel. The appropriate remedy is to order a new appellate proceeding limited to reviewing the jury instruction issues rather than ordering a new trial.
[1] A jury instruction using "and/or" in defining assault or resisting arrest with violence constitutes fundamental error.
[2] Failure to raise a fundamental error on direct appeal constitutes ineffective assistance of appellate counsel.
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Join FLexlaw to unlock all legal intelligence“Counsel's failure to argue this issue constituted a serious or substantial deficiency falling measurably outside the range of professionally acceptable performance and compromised the appellate process to a degree that it undermines confidence in the result of Comer's direct appeal of his judgment and sentence.”
Establishes the ineffective assistance standard and why counsel's omission was deficient
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Join FLexlaw to unlock all legal intelligenceComer was tried by jury and convicted of sale of a controlled substance, two counts of aggravated assault with a deadly weapon, and resisting arrest w…
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PER CURIAM.
Charles Comer was tried by a jury and convicted of sale of a controlled substance, two counts of aggravated assault with a deadly weapon, and resisting arrest with violence. The victims of the assault were the same deputy sheriffs whom Comer resisted. On appeal, appellant’s counsel filed a brief consistent with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and this court affirmed, Comer v. State, 935 So. 2d 502 (Fla. 1st DCA 2006).
Comer now alleges that he received ineffective assistance of counsel in his direct appeal, and we agree. In instructing the jury on assault, the court advised that findings of guilt could be made if it was found that the defendant intentionally and willfully threatened to do violence to one of the deputies and/or the other, and that this action created in the mind of one deputy and/or the other a well-grounded fear that violence was about to take place. The “and/or” conjunctive was used in similar fashion when the jury was instructed on resisting arrest. These instructions were found to be fundamental error in Miller v. State, 918 So. 2d 415 (Fla. 2d DCA 2006) (relying on Tindle v. State, 832 So. 2d 966 (Fla. 5th DCA 2002), and James v. State, 706 So. 2d 64 (Fla. 5th DCA 1998)).
Counsel’s failure to argue this issue constituted a serious or substantial deficiency falling measurably outside the range of professionally acceptable performance and corn- promised the appellate process to a degree that it undermines confidence in the result of Comer’s direct appeal of his judgment and sentence. See Pope v. Wainwright, 496 So. 2d 798 (Fla.1986).
As in Shabazz v. State, 955 So. 2d 57 (Fla. 1st DCA 2007), we find that the appropriate remedy is to order a new appellate proceeding to review these jury instruction issues, rather than ordering a new trial. This will permit briefing and review of the record on appeal to determine whether Garzón v. State, 980 So. 2d 1038 (Fla.2008), should be applied in reviewing these convictions and, if so, whether the record supports a conclusion that Comer is entitled to a new trial. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, who shall treat it as a notice of appeal for a new appellate proceeding which shall be limited to the use of “and/or” in instructing the jury.
The trial court shall appoint counsel to represent Comer in the new proceeding if he qualifies for such an appointment.
PETITION GRANTED.
WEBSTER, LEWIS, and HAWKES, JJ., concur.
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Citator
Cited By
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Bryant v. State, 30 So. 3d 591 (Fla. 2d DCA 2010)…ntally erroneous jury instructions on a judgment and sentence for aggravated assault with a deadly weapon in accordance with Miller). Other district courts have reached similar conclusions in aggravated assault or battery cases. See Comer v. State, 997 So. 2d 440, 441 (Fla. 1st DCA 2008) (determining Comer’s appellate counsel was ineffective for failing to argue on appeal that the use of the “and/or” conjunctive in jury instructions for aggravated assault and resisting arrest were fundamental error); Love v.…
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Smith v. State, 19 So. 3d 417 (Fla. 2d DCA 2009)…ce of appeal, referencing this opinion. We note that nothing in this opinion should be construed as a determination regarding the correct application or interpretation of any of the case law relevant to the double jeopardy issue. See Comer v. State, 997 So. 2d 440, 441 (Fla. 1st DCA 2008) (“We find that the appropriate remedy is to order a new appellate proceeding to review [this issue], rather than ordering a new trial.”). Petition granted. ALTENBERND and KELLY, JJ., Concur. . §§ 784.03(1), .08(2), Fla. S…
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Schepman v. State, 146 So. 3d 1278 (Fla. 5th DCA 2014)…and third elements of the offense was “still fundamentally erroneous” because it permitted the jury to convict the defendant “if one alleged victim [*1285] was threatened while the other had a well-founded fear of violence.” See also Comer v. State, 997 So. 2d 440 (Fla. 1st DCA 2008) (reversing denial of ineffective assistance claim for failure to challenge use “and/or” to connect multiple victims in aggravated assault instruction). Based on James, Tindle, Fuller, Miller, and Comer, we conclude that the tria…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Pope v. Louie L. Wainwright, 496 So. 2d 798 (Fla. 1986)
- Zamir Garzon v. State, 980 So. 2d 1038 (Fla. 2008)
- Henderson James v. State, 706 So. 2d 64 (Fla. 5th DCA 1998)
- Musa Shabazz v. State, 955 So. 2d 57 (Fla. 1st DCA 2007)
- Miller v. State, 918 So. 2d 415 (Fla. 2d DCA 2006)
- Shirley v. State, 832 So. 2d 966 (Fla. 2d DCA 2002)