DALE LEE LENOIR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in denying postconviction relief on the claim that counsel was ineffective for failing to request a self-defense jury instruction.
Lenoir was convicted of battery on a law enforcement officer and sought postconviction relief, alleging ineffective assistance of counsel for failing …
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PER CURIAM.
Dale Lenoir appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Lenoir was convicted of two counts of battery on a law enforcement officer. He asserts that he testified at trial that one of the officers attacked him and that he began struggling with the officers only in self-defense. We reverse on one of his claims.
Lenoir alleges that counsel was ineffective in failing to request a jury instruction on self-defense. Such a claim is cognizable in a rule 3.850 proceeding. See, e.g., Newton v. State, 527 So. 2d 876 (Fla. 2d DCA 1988) (holding that failure to request a jury instruction on a necessarily lesser included offense constitutes ineffective assistance of counsel). Self-defense is applicable to a charge of battery on a law enforcement officer, see Johnson v. State, 634 So. 2d 1144 (Fla. 4th DCA 1994), and Lenoir has alleged facts which, if true, would have entitled him to the instruction. Moreover, if Lenoir, in fact, testified that he struggled with one of the officers, then self-defense would have been the only defense available to him. Under these circumstances Lenoir has shown that he was prejudiced by counsel’s alleged error. Therefore, we reverse and remand on this claim.
On remand the trial court may again deny Lenoir’s motion if this allegation is conclusively refuted by record attachments. If it cannot be refuted by record attachments, Lenoir must be afforded an evidentiary hearing. We affirm the trial court’s order with respect to Lenoir’s remaining claims.
Affirmed in part; reversed in part; and remanded.
FULMER, A.C.J., and SALCINES and DAVIS, JJ., Concur.
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Rickie Mathis v. State, 863 So. 2d 464 (Fla. 1st DCA 2004)…ry instruction on the justifiable use of non-deadly force. Contrary to the trial court’s reasoning, a claim that counsel was ineffective for failing to request a jury instruction on self defense is cognizable in a rule 3.850 motion. Lenoir v. State, 741 So. 2d 1148 (Fla. 2d DCA 1999). When the evidence fails to establish as a matter of law whether the type of force used was deadly or non-deadly, the defendant is entitled to instructions on the justifiable use of both types of force. Williams v. State, 727 So…
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Otneil Bolanos Calderon v. State, 840 So. 2d 427 (Fla. 2d DCA 2003)…mand, the trial court may again deny Mr. Calderon’s claim if his allegation is conclusively refuted by record attachments. If it cannot be refuted by record attachments, then Mr. Calderon must be afforded an evidentiary hearing. See Lenoir v. State, 741 So. 2d 1148 (Fla. 2d DCA1999). Next, Mr. Calderon claimed his defense counsel was ineffective for failing to definitively establish the sequence in which the shootings took place and failing to ask a key question, ‘Who was shot first?” At trial, the State had…
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Moragne v. State, 761 So. 2d 440 (Fla. 2d DCA 2000)…r vehicle. He alleges that his trial counsel was ineffective for failing to request a jury instruction on the alibi defense, and that he would have been acquitted but for this omission of his counsel. This is a cognizable claim. See Lenoir v. State, 741 So. 2d 1148 (Fla. 2d DCA 1999). It appears from Mo-ragne’s inartfully drafted motion that one of the witnesses actually provided an alibi for Moragne at trial. The trial court directed the State to respond to Moragne’s motion. The attorney who responded on beh…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Newton v. State, 527 So. 2d 876 (Fla. 2d DCA 1988)
- Kaiser Int'l Corp. v. Statia Terminals, Inc., 634 So. 2d 1144 (Fla. 3d DCA 1994)
- Johnson v. State, 634 So. 2d 1144 (Fla. 4th DCA 1994)