CURTIS JAMES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Curtis James appeals the summary denial of his Rule 3.850 ineffective assistance of counsel motion. The court affirms the denial of most grounds but reverses as to ground five concerning counsel's failure to request a jury instruction for a lesser included offense, finding the issue requires an evidentiary hearing.
The court holds that counsel's failure to request a lesser included jury instruction states a colorable claim of ineffective assistance of counsel, and the question of whether counsel's decision constituted a valid strategic choice requires an evidentiary hearing rather than summary denial. The case is reversed and remanded on this issue.
[1] A claim of ineffective assistance of counsel for failing to request a jury instruction for a lesser included offense may state a colorable claim, even if a jury instructi…
[2] A strategic decision by counsel not to request a lesser included jury instruction should generally only be determined after an evidentiary hearing.
Previewing 2 of 4 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“in Vickery v. State, 869 So.2d 623 (Fla. 5th DCA 2004), this Court held that Sanders conflicts with this Court's decisions holding that the failure of counsel to request a lesser included jury instruction states a colorable claim of ineffective assistance.”
Establishes that the Fifth District's prior law supports James's ineffective assistance claim contrary to the Sanders precedent.
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Join FLexlaw to unlock all legal intelligenceCurtis James was convicted of fleeing or attempting to elude a law enforcement officer with lights and sirens and with wanton disregard, a second degr…
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PLEUS, J.
Defendant, Curtis James, appeals the summary denial of his rule 3.850 motion. We affirm the denial of his motion, except as to ground five.
Defendant was tried and convicted of fleeing or attempting to elude a law enforcement officer with fights and sirens and with wanton disregard, a second degree felony. In ground five of his postcon-viction motion, defendant argues that his trial counsel was ineffective for failing to consult with defendant regarding the jury instructions for lesser included offenses and for failing to request an instruction for the lesser included offense of fleeing or attempting to elude an officer with fights and sirens, but without wanton disregard, a third degree felony.
The trial court denied this ground, pointing out that an instruction was given for the lesser offense of misdemeanor fleeing, but the jury nonetheless convicted defendant of the charged offense. The court concluded that there was no reasonable probability that the jury would have declined to follow the law and would have exercised its jury pardon power, and therefore prejudice was not established.
The trial court relied on Sanders v. State, 847 So. 2d 504 (Fla. 1st DCA 2003), which held that a claim that counsel was ineffective for not requesting a jury instruction for a one-step-removed lesser included offense could not satisfy the requirement to show prejudice. However, in Vickery v. State, 869 So. 2d 623 (Fla. 5th DCA 2004), this Court held that Sanders conflicts with this Court’s decisions holding that the failure of counsel to request a lesser included jury instruction states a colorable claim of ineffective assistance.
Although the State argues that counsel’s decision not to request the lesser included instruction was a strategic choice which should not be second guessed, such a determination should generally only be made after an evidentiary hearing. See State v. Williams, 797 So. 2d 1235 (Fla.2001); Morrison v. State, 860 So. 2d 458 (Fla. 1st DCA 2003). Therefore, we reverse the trial court’s order as to this ground only and remand for further consideration.
AFFIRMED IN PART; REVERSED IN PART and REMANDED.
PALMER and MONACO, JJ., concur.
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Citator
Cited By
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State v. Wylie M. Vickery, 961 So. 2d 309 (Fla. 2007)…, J. We review three cases in which the Fourth and Fifth District Courts of Appeal acknowledged (but did not certify) conflict with the First District Court of Appeal. These are: Charles v. State, 890 So. 2d 542 (Fla. 4th DCA 2005), James v. State, 881 So. 2d 85 (Fla. 5th DCA 2004), and Vickery v. State, 869 So. 2d 628 (Fla. 5th DCA 2004). The issue is whether a claim that alleges ineffective assistance of counsel for failure to request an instruction on a lesser-included offense may be summarily denied. Se…
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Pomposello v. State, 940 So. 2d 500 (Fla. 5th DCA 2006)…ation nor attachments from the record to support this conclusion. Generally, an evidentiary hearing is required before a court can determine that counsel’s seemingly deficient performance was the result of a strategic choice. [*502] James v. State, 881 So. 2d 85 (Fla. 5th DCA 2004). An exception to this general rule occurs when the reasonableness of counsel’s strategy is obvious from the record. State v. Williams, 797 So. 2d 1235, 1239 (Fla.2001), citing McNeal v. Wainwright, 722 F. 2d 674, 676 (11th Cir.19…
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State v. Holmes, 929 So. 2d 719 (Fla. 5th DCA 2006)…d disagreement with Sanders, but holds that the failure to request a jury instruction for a lesser included offense “states a color-able claim of ineffective assistance” which may be assessed “only ... after an eviden-tiary hearing.” James v. State, 881 So. 2d 85, 86 (Fla. 5th DCA 2004). Because it is possible that counsel’s decision not to re- [*721] quest instruction on the lesser offense of voluntary manslaughter was a valid strategic decision, the trial judge should have at least afforded the State an op…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Williams, 797 So. 2d 1235 (Fla. 2001)
- State v. Tatakis, 847 So. 2d 504 (Fla. 3d DCA 2003)
- Sanders v. State, 847 So. 2d 504 (Fla. 1st DCA 2003)
- Johnson v. State, 869 So. 2d 623 (Fla. 3d DCA 2004)
- Morrison v. State, 860 So. 2d 458 (Fla. 1st DCA 2003)