CHARLES BRIGHT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Charles Bright appeals the summary denial of his Rule 3.850 motion for post-conviction relief alleging ineffective assistance of trial counsel on multiple grounds. The Fifth District Court of Appeal affirmed the denial, finding no merit to any of Bright's ineffective assistance claims.
The court affirmed the denial of post-conviction relief, finding no ineffective assistance of counsel on any ground. Trial counsel had in fact requested lesser included offense instructions; the written jury instructions on count three were correct despite an oral omission; counts five and six involved separate acts so no double jeopardy violation existed; and aggravated battery on a law enforcement officer qualifies for a mandatory thirty-year Prison Releasee Reoffender sentence.
[1] Ineffective assistance of counsel claims require a showing of prejudice to the defendant.
[2] A defendant cannot claim ineffective assistance of counsel for failure to request jury instructions on necessarily included offenses when such instructions were properly…
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Join FLexlaw to unlock all legal intelligence“The record reveals that trial counsel requested, and the appropriate lesser included offenses and instructions were given, on the proper lesser included offenses.”
Establishes that trial counsel's alleged failure to request lesser included offense instructions was factually unsupported by the record.
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Join FLexlaw to unlock all legal intelligenceBright was charged with seven offenses including carjacking, kidnapping, burglary of a conveyance with assault or battery, battery on a law enforcemen…
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Bright appeals from .the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial judge attached numerous portions of the record to refute Bright’s allegations in his motion. We affirm.
In paragraphs one, two, three and six of his motion, Bright alleged his trial counsel was ineffective because he failed to request jury instructions for necessarily included offenses.1 The record reveals that trial counsel requested, and the appropriate lesser included offenses and instructions were given, on the proper lesser included offenses.
In paragraph four, Bright alleged his trial counsel was ineffective for having failed to object to an erroneous jury instruction regarding count three.2 Although the oral reading of the instruction inadvertently omitted the word “not,” the written instructions given to the jury were correct. Thus no prejudice was shown.
In paragraph five, Bright alleged his trial counsel was ineffective for failing to assert á double jeopardy claim regarding counts five and six.3 However, the counts addressed two separate acts of resisting. Thus there was no double jeopardy violation.
Lastly, in paragraph seven, Bright alleged his trial counsel failed to object to the coürt’s exceeding the sentencing guidelines on count seven.4 On that count, he was sentenced to thirty years as a Prison Releasee Reoffender. The judge noted below that trial counsel did object that aggravated, battery was not eligible for Prison Releasee1 .Reoffender treatment. However, the court found that aggravated battery on a law enforcement officer does qualify for a mandatory thirty-year sentence under the Act. Thus no prejudice or defect in trial counsel performance was shown.
One ground that trial counsel could possibly have raised with regard to the Prison Releasee Reoffender sentence was that Bright should not have been sentenced both as an Habitual Felony Offender and a Prison Releasee Reoffender. This court has agreed with the fourth district that a defendant may be sentenced for one offense as either a Habitual Felony Offender or a Prison Releasee Reoffender, but not both. See Lewis v. State, 751 So. 2d 106 (Fla. 5th DCA 1999); Hamilton v. State, 752 So. 2d 1274 (Fla. 4th DCA 2000); Melton v. State, 746 So. 2d 1188 (Fla. 4th DCA 1999); Glave v. State, 745 So. 2d 1065, 1066 (Fla. 4th DCA 1999). However, that does not mean that the defendant is entitled to relief. We also agree with the fourth district, which has held that a defendant can be sentenced as a Habitual Offender on one count and as a Prison Releasee Reof-fender on another count. See Nash v. State, — So. 2d -, 2000 WL 232625 (Fla. 4th DCA Mar.1, 2000) (sentence affirmed where defendant was convicted of both robbery and burglary of a vehicle with battery and was sentenced to concurrent terms of thirty years and life, respectively, as a Habitual Felony Offender and as a Prison Releasee Reoffender). Thus, although Bright was sentenced for count seven as a Prison Releasee Reoffender and as a Habitual Felony Offender on another count, no error was shown here.
AFFIRMED.
PETERSON and SAWAYA, JJ., concur. .In Case No. CR97-12781, Bright was charged with seven offenses; carjacking (§ 812.133); kidnaping, with intent to commit a felony (§ 787.01(l)(a)2.); burglary of a conveyance with an assault or , battery (§ 810.02(1), (2)(a), battery on a law enforcement officer (§ 784.07(2)(b); resisting an officer with violence (§ 843.01); resisting arrest without violence (§ 843.02); and aggravated battery with a deadly weapon on a law enforcement officer (§ 784.07(2)(d)). The court directed a verdict of acquittal on the kidnap-ing charge and the jury found-Bright guilty of attempted carjácking and guilty as charged on the other counts.
. Burglary of a conveyance with an assault or battery. § 810.02(1), (2)(a), Fla. Stat. . Resisting an officer with violence (§ 843.02, F.la.Stat.), and resisting arrest without vio-, lence. § 843.01, Fla. Stat. . Aggravated battery with a deadly weapon on a law enforcement officer. § 784.07(2)(d), Fla. Stat.
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Madison v. State, 777 So. 2d 1175 (Fla. 5th DCA 2001)…episode and a continuous resistance to the arrest. A defendant may properly be convicted of both resisting arrest with violence and resisting arrest without violence if those convictions address two separate acts of resisting. See Bright v. State, 760 So. 2d 287, 288 (Fla. 5th DCA 2000); see also Casselman v. State, 761 So. 2d 482 (Fla. 5th DCA 2000). However, a continuous resistance to the ongoing attempt to effect a defendant’s arrest constitutes a single instance of resisting an officer under section 843…
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Williams v. State, 870 So. 2d 166 (Fla. 2d DCA 2004)…ffender on the same count. We agree that it is permissible to sentence one defendant as both a habitual felony offender and as a prison releasee reoffender on separate counts. See Tolbert v. State, 827 So. 2d 278 (Fla. 2d DCA 2002); Bright v. State, 760 So. 2d 287 (Fla. 5th DCA 2000). Accordingly, we affirm the trial court’s denial of Williams’ motion. SALCINES and KELLY, JJ„ Concur.…
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Hunsicker v. State, 881 So. 2d 1166 (Fla. 5th DCA 2004)…releasee reoffender for each count. It is permissible to sentence one defendant as both a HO and as a PRR on separate counts. Williams v. State, 870 So. 2d 166 (Fla. 2d DCA 2004); Tolbert v. State, 827 So. 2d 278 (Fla. 2d DCA 2002); Bright v. State, 760 So. 2d 287 (Fla. 5th DCA 2000). It is also permissible to sentence a defendant as a HO and a PRR on the same count as long as the sentences are concurrent and the HO sentence exceeds the PRR sentence. Grant v. State, 770 So. 2d 655 (Fla.2000); State v. Manning…
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
- Vashon Oland Lewis v. State, 751 So. 2d 106 (Fla. 5th DCA 1999)
- Glave v. State, 745 So. 2d 1065 (Fla. 4th DCA 1999)
- State v. Hyde, 746 So. 2d 1188 (Fla. 4th DCA 1999)
- Melton v. State, 746 So. 2d 1188 (Fla. 4th DCA 1999)
- Hamilton v. State, 752 So. 2d 1274 (Fla. 4th DCA 2000)