ALEX SIMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a claim of ineffective assistance of counsel based on an improper jury instruction on a lesser included offense is sufficient to warrant further review if the indictment does not allege the necessary elements of that offense.
Appellant was convicted of third degree murder and aggravated battery. He claimed his trial counsel was ineffective for failing to object to the jury …
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PER CURIAM.
Sims appeals from the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850.
We affirm with regard to all of appellant’s claims except one. Appellant was charged by indictment with first degree murder and attempted robbery with a firearm. He was found guilty of the lesser included offenses of third degree murder and aggravated battery. Appellant alleges that his trial counsel was ineffective for not objecting to instruction on aggravated battery as a lesser included offense of the attempted robbery with a firearm charge1 and that had such instruction not been given, the jury would have acquitted him or found him guilty of a lesser offense. Appellant correctly points out that instruction on a permissive lesser included offense is only allowed where the accusatory pleadings allege the necessary elements of the offense and commission of the offense is supported by the evidence at trial. See State v. Weller, 590 So. 2d 923, 926 (Fla.1991).
Appellant alleges that the indictment does not support the giving of the instruction on aggravated battery in the instant case because it does not allege a battery or that a deadly weapon was “used,” both of which are essential elements of aggravated battery. Appellant’s allegation is sufficient to meet the requirements of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Accordingly, we reverse and remand on this issue for the trial court to attach portions of the record that conclusively refute appellant’s claim or to hold an evidentiary hearing. We affirm the trial court’s summary denial as to all other grounds raised in the motion.
ERVIN, MINER and KAHN, JJ., concur. . We note that these two offenses are both second degree felonies. See §§ 812.13(2)(a), 777.04(4), and 784.045, Fla. Stat.
Cases With Similar Vibessemantic neighbors from the corpus
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Peffley v. State, 766 So. 2d 418 (Fla. 4th DCA 2000)…for objecting to the trial court’s offer to instruct on aggravated battery as a lesser included offense. We find both issues legally sufficient and not refuted by the record provided. See State v. Wimberly, 498 So. 2d 929 (Fla. 1986); Sims v. State, 740 So. 2d 1256 (Fla. 1st DCA 1999); Oehling v. State, 659 So. 2d 1226 (Fla. 5th DCA 1995). Accordingly, we reverse and remand on this issue for the trial court to attach portions of the record that conclusively refute appellant’s claim or to hold an evi-dentiary…
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Maxsony Coissy v. State, 957 So. 2d 53 (Fla. 4th DCA 2007)…as well as the evidence, supported the instruction. Thus, appellant’s allegations of ineffective assistance of counsel sufficiently state a claim under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Sims v. State, 740 So. 2d 1256 (Fla. 1st DCA 1999) (holding that postconviction claim that defense counsel failed to object to instruction on aggravated battery as lesser included offense to attempted robbery with a firearm where the indictment did not allege essential elements o…
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Smith v. State, 807 So. 2d 755 (Fla. 4th DCA 2002)…struction on trespass as a lesser included offense. We find this issue legally sufficient and not refuted by the record provided. See Peffley v. State, 766 So. 2d 418 (Fla. 4th DCA 2000); State v. Wimberly, 498 So. 2d 929 (Fla.1986); Sims v. State, 740 So. 2d 1256 (Fla. 1st DCA 1999); Oehling v. State, 659 So. 2d 1226 (Fla. 5th DCA 1995). The record provided by the trial court that shows that Smith admitted to being on the burglarized premises does not conclusively refute his claim. Accordingly, we reverse…
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- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- State v. Weller, 590 So. 2d 923 (Fla. 1991)