WILLIAM OEHLING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Oehling appeals the trial court's summary denial of his Rule 3.850 motion for a new trial based on ineffective assistance of counsel. The court held that the trial court erred by summarily denying his claim regarding failure to request a jury instruction on battery as a necessarily included lesser offense, but properly rejected his claim regarding jury instruction on resisting arrest.
The court held that Oehling is entitled to further proceedings on his claim regarding the failure to request a necessarily included lesser offense instruction because the trial court failed to attach adequate record materials to support summary denial. The court affirmed the denial of his resisting arrest instruction claim as foreclosed by precedent. The trial court must either attach sufficient record portions to refute the ineffective assistance argument or hold an evidentiary hearing.
[1] A trial court must attach portions of the record that conclusively show a defendant is not entitled to relief when summarily denying a motion for postconviction relief.
[2] Failure to request a jury instruction on a necessarily included lesser offense constitutes a legally sufficient ground for an ineffective assistance of counsel claim.
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Join FLexlaw to unlock all legal intelligence“Failure to request an instruction on a necessarily included lesser offense is a legally sufficient ground to support an ineffective assistance of counsel claim.”
Establishes that the trial court's summary denial was improper because the claim was not legally insufficient on its face
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Join FLexlaw to unlock all legal intelligenceOehling was convicted of battery on a law enforcement officer. He filed a Rule 3.850 motion alleging two grounds for ineffective assistance of counsel…
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W. SHARP, Judge.
Oehling appeals from the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850, which seeks a new trial because of ineffective assistance of trial counsel. The trial court failed to attach copies of any portion of the record that conclusively shows Oehling is not entitled to any relief.1 We think Oehling is entitled to further proceedings regarding his claim based on failure of trial counsel to request a jury instruction on battery as a necessarily included lesser offense to battery on a law enforcement officer,2 the offense for which he was convicted. However, we think his second ineffective assistance ground, which alleges a claimed erroneous instruction on resisting arrest, has been decided adversely to his position. See State v. Anderson, 639 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 in fact been given, Oehling’s ease is legally insufficient. It relies on Lightbourne v. State, 471 So. 2d 27 (Fla.1985) (attachments not required when claim is legally insufficient); Grimes v. State, 642 So. 2d 145 (Fla. 4th DCA 1994) (failure of court to include attachments in a rule 3.800(a) proceeding not error when state’s response includes attachments and the court’s order indicates that state’s response was considered); and Bland v. State, 563 So. 2d 794 (Fla. 1st DCA), rev. dismissed, 574 So. 2d 139 (Fla.1990) (failure to attach record not reversible error when court considered transcript from direct appeal, transcript is part of record in rule 3.850 proceeding, and parties in rule 3.850 proceeding rely on transcript).
These cases are distinguishable. Lightb-oume involves a legally insufficient claim. This one does not. Grimes involved a motion filed in a rule 3.800(a) proceeding, in which the state filed a response, attaching a copy of the appellant’s signed plea agreement that refuted the motion in its entirety. The court’s order stated it considered the state’s response. Bland appears distinguishable because the transcript from the direct appeal was part of the record in the rule 3.850 appeal and was relied on by the parties and the court. Here, the transcript is not part of the record for this rule 3.850 appeal, and we have no way of ascertaining whether trial counsel failed to request the necessarily included lesser offense instruction.
We also reject the attorney general’s additional argument that rule 3.850 only requires a trial court to attach documents, portions of the files and record, when it does not order a response from the state. Ruling with a response from the state, by itself, does not transform the proceeding into a non-summary one no longer requiring the alternative attachment of records, etc., or an evidentiary hearing procedure as provided in rule 3.850(d).
In this case, the trial court should either attach portions of the record sufficient to refute Oehling’s ineffective assistance of counsel argument, or hold an evidentiary hearing to resolve any factual issues. Waters v. State, 612 So. 2d 685 (Fla. 5th DCA 1993); Montgomery v. State, 615 So. 2d 226 (Fla. 5th DCA 1993); Debose v. State, 580 So. 2d 638 (Fla. 5th DCA 1991). We have held in the past that the state cannot cure the trial court’s oversight by designating portions of the record to refute a defendant’s allegations. Smothers v. State, 555 So. 2d 452 (Fla. 5th DCA 1990). See also McCray v. State, 633 So. 2d 561 (Fla. 4th DCA 1994).
Accordingly, we reverse and remand for further proceedings consistent with this opinion.
AFFIRMED in part; REVERSED in part, and REMANDED.
PETERSON, C.J., and HARRIS, J., concur. . See Fla.R.Crim.P. 3.850(d).
. See State v. Wimberly, 498 So. 2d 929 (Fla.1986).
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Cited By (17 total)
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Sanders v. State, 946 So. 2d 953 (Fla. 2006)…, 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 876 (Fla. 2d DCA 1988). Sanders, 847 So. 2d at 508. II. ANALYSIS The defendants in these cases argue that their defense counsel were constitutionally ineffective for failing to request jury inst…
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Sanders v. State, 847 So. 2d 504 (Fla. 1st DCA 2003)…a. 1st DCA 2000), Critton v. State, 668 So. 2d 242 (Fla. 1st DCA 1996), and Kennedy v. State, 637 So. 2d 987 (Fla. 1st DCA 1994). We also certify conflict with decisions such as 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 876 (Fla. 2d DCA 1988). AFFIRMED. [*509] ALLEN, C.J., BOOTH, BARFIELD, WOLF, KAHN, WEBSTER, DAVIS, VAN NORTWICK, PADOVANO, LEWIS, POLSTON and HAWKES, JJ., CONCUR. ERVIN, J., CONCURS and DISSENTS…
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Amok Hill v. State, 788 So. 2d 315 (Fla. 1st DCA 2001)…Florida courts over the years since Bateson was decided. See, e.g., Peffley v. State, 766 So. 2d 418 (Fla. 4th DCA 2000); McClendon v. State, 765 So. 2d 247 (Fla. 1st DCA 2000); Critton v. State, 668 So. 2d 242 (Fla. 1st DCA 1996); Oehling v. State, 659 So. 2d 1226 (Fla. 5th DCA 1995); Kennedy v. State, 687 So. 2d 987 (Fla. 1st DCA 1994); Newton v. State, 527 So. 2d 876 (Fla. 2d DCA 1988). See also Bethea v. State, 767 So. 2d 630 (Fla. 5th DCA 2000). But the trial court in the present case did not consider the…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- State v. Wimberly, 498 So. 2d 929 (Fla. 1986)
- Lightbourne v. State, 471 So. 2d 27 (Fla. 1985)
- Montgomery v. State, 615 So. 2d 226 (Fla. 5th DCA 1993)
- State v. Anderson, 639 So. 2d 609 (Fla. 1994)
- Bland v. State, 563 So. 2d 794 (Fla. 1st DCA 1990)
- Waters v. State, 612 So. 2d 685 (Fla. 5th DCA 1993)
- Newton v. State, 527 So. 2d 876 (Fla. 2d DCA 1988)
- Eldridge A. McCRAY v. State, 633 So. 2d 561 (Fla. 4th DCA 1994)
- DeVITTO v. State, 580 So. 2d 638 (Fla. 1st DCA 1991)
- Ozell Debose, Jr. v. State, 580 So. 2d 638 (Fla. 5th DCA 1991)