GEORGE ESTEVEZ, PETITIONER,
v.
JAMES CROSBY, SECRETARY, DEPARTMENT OF CORRECTIONS, RESPONDENT
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Estevez petitioned for relief based on ineffective assistance of appellate counsel for failing to raise on direct appeal the fundamental error of a jury instruction on self-defense. The court granted the petition and allowed a belated appeal, finding that the self-defense instruction was erroneous because it was applied to a single-count aggravated battery charge rather than a multi-count case involving a separate forcible felony.
The court granted the petition for ineffective assistance of appellate counsel, holding that the jury instruction was improper when applied to a single-count charge and constituted fundamental error that appellate counsel was ineffective in failing to raise on direct appeal. The court allowed a belated appeal limited to the self-defense instruction issue.
[1] A jury instruction that negates a defendant's self-defense claim by stating that force is not justifiable if the defendant was attempting to commit, committing, or escapi…
[2] Ineffective assistance of appellate counsel may be established by the failure to raise a fundamental error on direct appeal.
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Join FLexlaw to unlock all legal intelligence“To instruct the jury that the accused was not entitled to use force if he was attempting to commit, committing, or escaping after committing the only crime charged is circular, confusing, and in essence negates the defense.”
Establishes why the jury instruction was fundamental error when applied to a single-count charge
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Join FLexlaw to unlock all legal intelligenceEstevez was charged with and convicted of a single count of aggravated battery. His sole defense at trial was self-defense. The trial court instructed…
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PER CURIAM.
George Estevez filed a petition alleging ineffective assistance of appellate counsel. We grant the petition, providing for a belated appeal limited to the issue of whether the trial court’s jury instruction regarding self-defense constituted fundamental error. The defendant was charged with, and found guilty of, a single count of aggravated battery. His sole defense at trial was self-defense. The court instructed the jury-that his use of force against the victim was not justifiable if it were to find that the defendant was “attempting to commit, committing or escaping after the commission of aggravated battery.” See § 776.041(1), Fla. Stat. (2001).1 Defense counsel did not object to the instruction.
However, the defendant argues that his appellate counsel should have raised this issue as fundamental error on direct appeal, and was ineffective when it failed to do so.
We agree.
This instruction is to be given when the accused is charged with at least two offenses, the one for which the accused claims self-defense as well as a separate forcible felony. Giles v. State, 831 So. 2d 1268 (Fla. 4th DCA 2002). To instruct the jury that the accused was not entitled to use force if he was attempting to commit, committing, or escaping after committing the only crime charged is circular, confusing, and in essence negates the defense.
However, the fundamental nature of the error can only be determined upon a review of the full record. See Fair v. Crosby, 2003 WL 22400708, 858 So. 2d 1103 (Fla. 4th DCA 2003) (granting petition alleging ineffective assistance of appellate counsel). See also Davis v. State, 804 So. 2d 400, 404 (Fla. 4th DCA 2001); Jones v. State, 656 So. 2d 489 (Fla. 4th DCA 1995). Appellate counsel’s failure to raise the issue in the direct appeal undermines our confidence in the correctness of the result of that proceeding. Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (Fla.1984).
Accordingly, this opinion shall be filed with the lower tribunal and treated as the notice of belated appeal of the judgment and sentence entered on July 25, 2001. Upon receipt, the clerk of the lower court shall certify a copy of this opinion to this court in accordance with Florida Rule of Appellate Procedure 9.040(g). The appeal shall proceed under a new case number, which shall be assigned upon receipt in this court of the certified opinion. All time requirements of the Florida Rules of Appellate Procedures shall run from the date of this opinion. If Petitioner qualifies for appointed counsel,, the trial court shall appoint counsel to represent him on appeal.
STEVENSON, SHAHOOD and MAY, JJ., concur. . Section 776.041, Fla. Stat. (2001), provides in pertinent part as follows:
The justification described in the preceding sections of this chapter is not available to a person who:
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony[.]
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Martinez v. State, 981 So. 2d 449 (Fla. 2008)…felony instruction. See Ortiz v. State, 905 So. 2d 1016 (Fla. 2d DCA 2005); York v. State, 891 So. 2d 569 (Fla. 2d DCA 2004); Baker v. State, 877 So. 2d 856 (Fla. 2d DCA 2004); Hickson v. State, 873 So. 2d 474 (Fla. 4th DCA 2004); Estevez v. Crosby, 858 So. 2d 376 (Fla. 4th DCA 2003); Fair v. Crosby, 858 So. 2d 1103 (Fla. 4th DCA 2003). In those cases which contained a subsequent opinion after the belated appeal oc [*461] curred, the district courts only reviewed the record to determine whether the defendant…
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Baker v. State, 877 So. 2d 856 (Fla. 2d DCA 2004)…h that we believe the issue should have been raised in the context of petitioner’s direct appeal. The fundamental nature of the error can be gleaned only from a review of the full record on appeal. 858 So. 2d at 1104-05. See also Estevez v. Crosby, 858 So. 2d 376, 377 (Fla. 4th DCA 2003). With these cases from the Fourth District in his arsenal, appellate counsel’s failure to argue that the instruction given in Baker’s trial was fundamental error was ineffective assistance of appellate counsel. Accordingly,…
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Granberry v. State, 919 So. 2d 699 (Fla. 5th DCA 2006)…a belated appeal where no objection to the instruction was voiced, finding that counsel was ineffective for failing to argue that the instructional error was fundamental. See also Baker v. State, 877 So. 2d 856 (Fla. 2d DCA 2004); Estevez v. Crosby, 858 So. 2d 376 (Fla. 4th DCA 2003). In Rich v. State, 858 So. 2d 1210 (Fla. 4th DCA 2003), decided eight days before Granberry’s motion for rehearing was denied, the court held in a direct appeal that giving the instruction where there was no other independent fo…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Smith v. Robbins, 528 U.S. 259 (U.S. 2000)
- Davis v. State, 804 So. 2d 400 (Fla. 4th DCA 2001)
- Jones v. State, 656 So. 2d 489 (Fla. 4th DCA 1995)
- Fair v. Crosby, 858 So. 2d 1103 (Fla. 4th DCA 2003)