BERNARD MCCLENDON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in summarily denying two claims in the motion for postconviction relief.
Bernard McClendon appealed the summary denial of his motion for postconviction relief. He raised claims regarding ineffective assistance of counsel.…
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PER CURIAM.
Bernard McClendon appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the denial of two of his claims.
First, in addressing McClendon’s claim that defense counsel failed to act upon being informed that one of the jurors was sleeping, the trial court resolved factual issues. Because this claim should not have been subject to summary denial, we reverse and remand for further proceedings under the rule. See Bieser v. State, 677 So. 2d 59 (Fla. 1st DCA 1996); Kesick v. State, 448 So. 2d 644 (Fla. 4th DCA 1984).
Second, the trial court failed to address McClendon’s claim that defense counsel was ineffective for failing to request a jury instruction on resisting a merchant. McClendon was charged with armed robbery and, as he asserts, “[t]he charge of resisting a merchant is a permissive lesser included offense of robbery.” Epps v. State, 728 So. 2d 761, 762 (Fla. 2d DCA 1999); accord Maldanado v. State, 691 So. 2d 61 (Fla. 3d DCA 1997); Duval v. State, 688 So. 2d 1002 (Fla. 2d DCA 1997). “[A] lesser offense may be a category-two permissive lesser included offense if its elements are alleged in the accusatory pleading and proven at the trial.” Taylor v. State, 608 So. 2d 804, 805 (Fla.1992). “An instruction on a permissive lesser included offense must be given ‘when the pleadings and the evidence demonstrate that the lesser offense is included in the offense charged.’” Duval, 688 So. 2d at 1003; see Bateson v. State, 516 So. 2d 280, 282 (Fla. 1st DCA 1987) (on motion for rehearing, this court explained that “[wjhether a category two instruction should be given depends upon the circumstances of a given case”). Accordingly, we also reverse and remand the denial of this claim for further proceedings under the rule.
REVERSED and REMANDED.
ERVIN, MINER, and KAHN, JJ„ concur.
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Sanders v. State, 946 So. 2d 953 (Fla. 2006)…the certified question in Hill v. State, 788 So. 2d 315 (Fla. 1st DCA 2001), revieiv denied, 807 So. 2d 655 (Fla.2002)). The First District [*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…
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Reynolds v. State, 99 So. 3d 459 (Fla. 2012)…ailed to object to a sleeping juror and the postconviction court erred in summarily denying the claim. See also Judd v. State, 951 So. 2d 103, 104 (Fla. 4th DCA 2007); Erlsten v. State, 842 So. 2d 967, 968-69 (Fla. 4th DCA 2003); McClendon v. State, 765 So. 2d 247, 248 (Fla. 1st DCA 2000); Reside v. State, 448 So. 2d 644, 644 (Fla. 4th DCA 1984). The Terrell court, accordingly, reversed and remanded for an evidentiary hearing on this claim. See 9 So. 3d at 1290. Conversely, the Fourth District has also affirm…
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Sanders v. State, 847 So. 2d 504 (Fla. 1st DCA 2003)…did not answer the question certified therein, we are now satisfied that a proper application of Strickland mandates a negative answer to the question. The order under review is accordingly affirmed. We recede from Bateson, Hill, McClendon v. State, 765 So. 2d 247 (Fla. 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. Sta…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Taylor v. State, 608 So. 2d 804 (Fla. 1992)
- Bateson v. State, 516 So. 2d 280 (Fla. 1st DCA 1987)
- Kesick v. State, 448 So. 2d 644 (Fla. 4th DCA 1984)
- Epps v. State, 728 So. 2d 761 (Fla. 2d DCA 1999)
- Duval v. State, 688 So. 2d 1002 (Fla. 2d DCA 1997)
- Wilson v. State, 677 So. 2d 59 (Fla. 1st DCA 1996)
- Bieser v. State, 677 So. 2d 59 (Fla. 1st DCA 1996)
- Maldanado v. State, 691 So. 2d 61 (Fla. 3d DCA 1997)