STEVEN BOUCHARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2003-06-20
No. 2D03-552
COVINGTON and KELLY, JJ., Concur.
847 So. 2d 598 Florida District Court of Appeal, Second District (2003) Negative Treatment
Cited by 3 cases

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Holding

The court held that the trial court erred in summarily denying the motion for postconviction relief because the record did not conclusively refute the claim of ineffective assistance of counsel.

Facts & Procedural History

Steven Bouchard appealed the summary denial of his motion for postconviction relief, alleging his trial counsel was ineffective for failing to object …

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Topics
Preservation Of Error For Appeal Motion For Postconviction Relief Jury Instructions Postconviction Relief

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Opinion of the Court
SALCINES, Judge.

[*599] SALCINES, Judge.

Steven Bouchard appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Bouchard claimed that his trial counsel was ineffective for failing to object when the trial court provided the jury with a partial copy of the jury instructions. He claimed that his conviction would have been reversed if his counsel had preserved the issue for appeal. Because the record does not refute Bouchard’s claim, we reverse and remand for further proceedings.

The failure to preserve a potentially reversible error for appeal may constitute ineffective assistance of counsel. See Daniels v. State, 806 So. 2d 563 (Fla. 4th DCA 2002). Under certain circumstances, it is reversible error for the trial court to provide the jury with a copy of only a portion of the jury instructions; if the trial court provides the jury with any written instructions, it must provide the jury with all of the instructions. Van Loan v. State, 779 So. 2d 497 (Fla. 2d DCA 2000); Pettit v. State, 612 So. 2d 1381 (Fla. 2d DCA 1992); Wilson v. State, 746 So. 2d 1209 (Fla. 5th DCA 1999); Fla.R.Crim. P. 3.400(a)(3). Therefore, if only partial written instructions were given to the jury, and trial counsel failed to preserve the issue for appeal, trial counsel was ineffective.

The trial court denied the claim on the basis that the trial court provided the jury with a copy of all the jury instructions. While the record indicates that copies of the instructions on the elements and voluntary intoxication were given to the jury, Bouchard claims, and the State concedes, that other jury instructions were not provided to the jury. Since the record does not refute Bouchard’s claim, we reverse and remand for the trial court to conduct an evidentiary hearing or provide record attachments that conclusively refute Bou-chard’s claim.

Reversed and remanded.

COVINGTON and KELLY, JJ., Concur.

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Citator

Cited By

  • Dep't OF Child. & Families v. Harter, 861 So. 2d 1274 (Fla. 5th DCA 2003)
    …that the court exceeded its authority in directing it, as Harter’s legal custodian, to provide a specific treatment. Cf Department of Children and Families v. W.M.J., 849 So. 2d 1147 (Fla. 5th DCA 2003); Department of Children and Families v. M.C., 847 So. 2d 598 (Fla. 5th DCA 2003); Department of Children and Families v. E.M.S., 841 So. 2d 621 (Fla. 5th DCA 2003).2 Section 916.15(2), Florida Statutes (2002), states in pertinent part: Every defendant acquitted of criminal charges by reason of insanity and…
  • Ottesen v. State, 862 So. 2d 30 (Fla. 2d DCA 2003)
  • State v. Bouchard, 922 So. 2d 424 (Fla. 2d DCA 2006)
    …ecede from our holding in Van Loan v. State, 872 So. 2d 330 (Fla. 2d DCA 2004), as to the appropriate standard to be used to determine prejudice in a claim for ineffective assistance of counsel. We also recede from our decision in Bouchard v. State, 847 So. 2d 598 (Fla. 2d DCA 2003) (Bouchard I), to the extent that it is inconsistent with our decision here. We reverse and remand for further proceedings. BOUCHARD’S MOTION AND PRIOR PROCEEDINGS After Bouchard was convicted of aggravated assault and grand thef…

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