WILLIAM THOMAS KENNEDY, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kennedy appealed the denial of his Rule 3.850 post-conviction relief motion, which raised claims regarding jury instructions on lesser included offenses and ineffective assistance of counsel. The appellate court reversed in part and remanded, finding that Kennedy's ineffective assistance of counsel claim regarding failure to request jury instructions on lesser included offenses was facially sufficient to warrant further proceedings.
The court reversed in part and remanded. While the court found no basis for relief on the first three grounds, it determined that Kennedy's ineffective assistance of counsel claim regarding failure to request jury instructions on necessarily lesser included offenses was facially sufficient to warrant relief and further proceedings on the merits.
[1] A judgment and sentence become final for purposes of the two-year time limitation for requesting rule 3.850 post-conviction relief when direct review of proceedings has c…
[2] A claim predicated on ineffective assistance of counsel for failure to request a jury instruction on a necessarily lesser included offense is cognizable on collateral att…
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Join FLexlaw to unlock all legal intelligence“claim predicated on ineffective assistance of counsel for failure to request a jury instruction on a necessarily lesser included offense cognizable on collateral attack”
Establishes that ineffective assistance of counsel claims based on failure to request lesser included offense instructions are cognizable on Rule 3.850 post-conviction relief
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Join FLexlaw to unlock all legal intelligenceKennedy was convicted on June 21, 1988, of crimes including kidnapping and armed burglary. His direct appeal decision was rendered on June 26, 1990. H…
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MICKLE, Judge.
Appellant seeks review of the trial court’s order denying his motion for post-conviction relief, filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We reverse in part, and remand.
Appellant finds fault with the trial court’s denial of his request seeking relief upon the following grounds: (1) the trial judge failed to instruct the jury on the lesser included offense of false imprisonment to the charge of kidnapping; (2) the trial judge failed to instruct the jury on the lesser included offense of burglary to the charge of armed burglary; (3) the charges of armed kidnapping and aggravated assault constitute double jeopardy; and (4) trial counsel was ineffective in failing to request jury instructions as to the lesser included offenses of false imprisonment and burglary and in failing to object to the double jeopardy charge of armed kidnapping and aggravated assault. The trial court denied relief, finding that the grounds raised “are either in mitigation, for which the Court is without jurisdiction as the motion is in excess of 60 days following sentence and appeal mandate, or the grounds are those which should have been raised in the direct appeal by Defendant or were facts which could have been ascertained by Defendant before expiration of two (2) years from date of sentence.”
At the outset, we note that appellant’s motion for relief, filed on August 22, 1991, was not untimely. Appellant was convicted on June 21, 1988. The decision on his direct appeal was rendered on June 26, 1990. 564 So. 2d 1127. For purposes of the two-year time limitation for requesting rule 3.850 post-conviction relief, a judgment and sentence become final when direct review of proceedings has concluded. Ward v. Dugger, 508 So. 2d 778 (Fla. 1st DCA 1987).
Turning to the merits, we find no basis for relief as to the first three grounds. Appellant’s allegations with respect to point four, however, are facially sufficient to demonstrate a basis for post-conviction relief under rule 3.850. Bateson v. State, 516 So. 2d 280 (Fla. 1st DCA 1987) (claim predicated on ineffective assistance of counsel for failure to request a jury instruction on a necessarily lesser included offense cognizable on collateral attack); and Newton v. State, 527 So. 2d 876 (Fla. 2d DCA 1988). Accordingly, this cause is reversed and remanded to the trial court to conduct further proceedings on the merits of the claim of ineffective assistance of counsel, as provided in rule 3.850. In all other respects, the order denying the motion for post-conviction relief is affirmed.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED.
BARFIELD and WOLF, JJ., concur.
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Raley v. State, 675 So. 2d 170 (Fla. 5th DCA 1996)…So. 2d 895 (Fla.1996). Likewise, a defendant is not entitled to successive review of a specific issue decided against him in an earlier post-conviction proceeding, even if the question pertains to the legality of his [*174] sentence. Burns v. State, 637 So. 2d 987 (Fla. 2d DCA 1994). To conclude otherwise would subject our courts to unrestrained barrages of successive motions filed by defendants claiming relief from illegal sentences. Applying this law to the facts of the instant case, the first question nec…
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Sanders v. State, 946 So. 2d 953 (Fla. 2006)…strict [*956] expressly receded from its earlier decisions holding otherwise. Id. (receding from McClendon v. State, 765 So. 2d 247 (Fla. 1st DCA 2000); Hill, 788 So. 2d at 315; Critton v. State, 668 So. 2d 242 (Fla. 1st DCA 1996); Kennedy v. State, 637 So. 2d 987 (Fla. 1st DCA 1994); and Bateson v. State, 516 So. 2d 280 (Fla. 1st DCA 1987)). It certified conflict with Peffley v. State, 766 So. 2d 418 (Fla. 4th DCA 2000), Oehling v. State, 659 So. 2d 1226 (Fla. 5th DCA 1995), and Newton v. State, 527 So. 2d 8…
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Oehling v. State, 659 So. 2d 1226 (Fla. 5th DCA 1995)…So. 2d 609 (Fla.1994). We affirm the trial court on this ground. Failure to request an instruction on a necessarily included lesser offense is a legally sufficient ground to support an ineffective assistance of counsel claim. See Kennedy v. State, 637 So. 2d 987 (Fla. 1st DCA 1994); Newton v. State, 527 So. 2d 876 (Fla. 2d DCA 1988). The attorney general takes the position, in this case, that because the trial court earlier ordered a response from the state which asserted the lesser included instruction had…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ward v. Dugger, 508 So. 2d 778 (Fla. 1st DCA 1987)
- Kennedy v. State, 564 So. 2d 1127 (Fla. 1st DCA 1990)
- Bateson v. State, 516 So. 2d 280 (Fla. 1st DCA 1987)
- Newton v. State, 527 So. 2d 876 (Fla. 2d DCA 1988)