RICHARD BLAKE BETHEA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Richard Blake Bethea appeals the summary denial of his Rule 3.850 ineffective assistance of counsel motion. The court reversed the summary denial of his claim that trial counsel failed to object when the verdict form omitted a necessarily lesser included offense of burglary, finding that an evidentiary hearing was required despite the trial court's conclusion that he was not prejudiced.
The court held that Bethea's claim of ineffective assistance of counsel was facially sufficient to warrant an evidentiary hearing. While trial counsel may be able to justify the decision as a strategic choice, the summary denial was improper because the omission of the lesser included offense from the verdict form prejudiced Bethea by preventing the jury from exercising its pardon power.
[1] A claim of ineffective assistance of counsel is facially sufficient to warrant an evidentiary hearing when the defendant alleges specific facts, not conclusively rebutted…
[2] A trial court must grant a defendant's request for an instruction on a necessarily lesser included offense.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“To uphold the trial court's summary denial of claims raised in a Rule 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record.”
Establishes the standard for reviewing summary denials of ineffective assistance claims
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Join FLexlaw to unlock all legal intelligenceBethea was tried and convicted of burglary of a dwelling and criminal mischief. The jury instructions informed the jury of the necessarily lesser incl…
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THOMPSON, C.J.
Richard Blake Bethea appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion. We reverse.
Bethea was tried and convicted of burglary of a dwelling and criminal mischief. Although the jury instructions informed the jury of the necessarily lesser included offense of burglary of a structure, Bethea asserts that his counsel failed to object when the verdict form provided to the jury failed to include that lesser included offense. Bethea claims this was ineffective assistance. The trial court determined that Bethea was not prejudiced by this omission, because based on the undisputed evidence that the structure in question was a dwelling, there was no reasonable possibility that the jury would have convicted Bethea of the lesser included offense.
As our supreme court has recently stated:
To uphold the trial court’s summary denial of claims raised in a Rule 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record. Further, where no evidentiary hearing is held below, we must accept the defendant’s factual allegations to the extent they are not refuted by the record.
Peede v. State, 748 So. 2d 253, 257 (Fla.1999) (citations omitted). A claim of ineffective assistance of counsel is facially sufficient to warrant an evidentiary hearing when defendant alleges specific facts which are not conclusively rebutted by the record and which demonstrate a deficiency in performance which prejudiced the defendant. See Teffeteller v. Dugger, 734 So. 2d 1009, 1016 (Fla.1999); Ragsdale v. State, 720 So. 2d 203, 207 (Fla.1998).
When a defendant requests an instruction on a necessarily lesser included offense, the trial court must grant the request. See State v. Wimberly, 498 So. 2d 929, 932 (Fla.1986); Fryer v. State, 732 So. 2d 30, 33 (Fla. 5th DCA 1999). This requirement is based on the recognition of the jury’s right to exercise its “pardon power.” See State v. Baker, 456 So. 2d 419, 420-21 (Fla.1984).
We have held that the failure of trial counsel to request an instruction on a necessarily lesser included offense is a legally sufficient proof of ineffective assistance of counsel. See Oehling v. State, 659 So. 2d 1226, 1227 (Fla. 5th DCA 1995). Although that is not the case here, the case is substantially similar enough to require an evidentiary hearing. See Moore v. State, 496 So. 2d 255, 256 (Fla. 5th DCA 1986)(holding that verdict which is not in conformance with the jury instructions was defective); see also Prater v. State, 608 So. 2d 559 (Fla. 2d DCA 1992)(holding that trial court committed per se reversible error when it omitted a necessarily lesser included offense from the verdict form, precluding the jury from exercising its pardon power); Robertson v. State, 532 So. 2d 90, 91 (Fla. 4th DCA 1988)(grievous oversight to omit from jury verdict form option of lesser included offense).
This oversight prejudiced Bethea. The jury found Bethea guilty of a lesser included offense on the other charge and there exists the reasonable possibility that the jury would have used its pardon power to find Bethea guilty of the lesser offense on the burglary charge. Although trial counsel may be able to justify the decision to allow the incomplete jury verdict as a strategic decision, an evidentiary hearing is necessary.
Bethea’s second claim alleges that his counsel failed to fully review his score sheet with him prior to sentencing. Although there may have been an error in the categorization of an offense, the record refutes any claim that Bethea was prejudiced by the error as the scoring for the offense was correct.
The trial court’s decision to summarily deny an evidentiary hearing on Bethea’s claims is reversed as to Bethea’s first claim regarding the erroneous verdict form.
AFFIRMED in part; REVERSED in part.
W. SHARP, and GRIFFIN,, JJ., concur.
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McKIVER v. State, 55 So. 3d 646 (Fla. 1st DCA 2011)…luded offense and is one step removed, while the offense of trespass is a permissive lesser-included offense and is two steps removed. In re Standard Jury Instructions in Criminal Cases-Report No. 2007-11, 986 So. 2d 563 (Fla.2008); Bethea v. State, 767 So. 2d 630, 630-31 (Fla. 5th DCA 2000) (noting that burglary of a structure is a necessary lesser-included offense of burglary of a dwelling); Prater v. State, 608 So. 2d 559, 559 (Fla. 2d DCA 1992) (noting that simple burglary is “only ‘one step’ removed from…
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Amok Hill v. State, 788 So. 2d 315 (Fla. 1st DCA 2001)…A 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 these authorities. Accordingly, because the trial court did not properly consider the evidentiary and decisional support for the appellant’s claim, we must reverse the or…
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Childers v. State, 782 So. 2d 513 (Fla. 1st DCA 2001)…5 of this claim that his counsel should have objected to testimony about sexual comments allegedly made by the appellant. This claim is not sufficiently pled because it does not allege exactly what statements are objectionable. See Bethea v. State, 767 So. 2d 630 (Fla. 5th DCA 2000) (listing the [*519] allegation of specific facts among the requirements for a facially sufficient claim of ineffective assistance of counsel). The appellant sufficiently alleged in part 6 of this claim that his counsel should no…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Peede v. State, 748 So. 2d 253 (Fla. 1999)
- State v. Wimberly, 498 So. 2d 929 (Fla. 1986)
- Teffeteller v. Dugger, 734 So. 2d 1009 (Fla. 1999)
- State v. Baker, 456 So. 2d 419 (Fla. 1984)
- Ragsdale v. State, 720 So. 2d 203 (Fla. 1998)
- Oehling v. State, 659 So. 2d 1226 (Fla. 5th DCA 1995)
- Doyle Fryer v. State, 732 So. 2d 30 (Fla. 5th DCA 1999)
- Morris v. Peggy Ann Morris (Armstrong), 496 So. 2d 255 (Fla. 1st DCA 1986)
- Moore v. State, 496 So. 2d 255 (Fla. 5th DCA 1986)
- Prater v. State, 608 So. 2d 559 (Fla. 2d DCA 1992)