LESTER JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lester Johnson appeals denial of his postconviction motion alleging ineffective assistance of trial counsel under Florida Rule of Criminal Procedure 3.850. The Florida Fourth District Court of Appeal affirms the trial court's denial in part but reverses in part, finding that certain grounds alleging ineffective assistance were legally sufficient and required an evidentiary hearing.
The court held that grounds two (part four), nine, eleven, and twenty-five of Johnson's motion presented legally sufficient allegations of ineffective assistance of counsel. The trial court was required to hold an evidentiary hearing on these grounds and adequately explain its denial with record citations, as required by Rule 3.850(d).
[1] Allegations of ineffective assistance of counsel based on failure to object to testimony or statements that improperly suggest a defendant's bad character or propensity f…
[2] Failure to request a jury instruction on scienter, where knowledge of possession is an element of the crime, can constitute ineffective assistance of counsel.
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“Knowledge of possession is an element of the crime of which Johnson was convicted, and the jury should have been instructed that it had to find he had knowledge of any firearm it found he possessed, and an ability to exercise control over it.”
Establishes that scienter/knowledge is a required element that must be included in jury instructions, supporting Johnson's claim of ineffective assistance for counsel's failure to request such instruction.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJohnson was convicted by jury of possession of a firearm by a convicted felon following execution of a search warrant at a residence where firearms we…
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PER CURIAM.
On appellant’s motion for rehearing,1 we withdraw the opinion issued on August 25, 2004, and substitute the following in its place.
Lester Johnson appeals the final order denying, after evidentiary hearing, his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.
Following a jury trial, Johnson was found guilty of possession of a firearm by a convicted felon. In the second part of the fourth ground of Johnson’s motion for postconviction relief, he alleged his trial counsel was ineffective in failing to object to testimony by state witnesses about his past contacts with the arresting officers. The ninth ground complained about his counsel’s questioning of a detective about the surveillance of Johnson. In the eleventh ground, Johnson asserted counsel was ineffective for failing to object to a “prefa7 tory statement” that the search warrant, the execution of which led to his arrest, was issued in a case for the confiscation of a firearm from a convicted felon. He alleged this statement was prejudicial in that it incorrectly led the jury to believe he was under surveillance in connection with guns. Johnson claimed all such matters were relevant only to establishing evidence of his bad character or propensity for criminal conduct in violation of the Williams rule.2 These allegations are legally sufficient. Compare Johnson v. State, 611 So. 2d 88 (Fla. 2d DCA 1992) (reversing in part summary denial of motion for post-conviction relief because introduction of testimony about defendant’s prior offenses without objection by defense counsel arguably established propensity for criminal behavior similar to that for which he was on trial and may have constituted ineffective assistance of counsel).
In the twenty-fifth ground of his motion, Johnson argued that his trial counsel was ineffective in failing to seek a jury instruction on scienter as his case involved joint occupancy of the residence in which the firearms in question were located. He argued that he was prejudiced because he was not aware of the existence of any firearms. Knowledge of possession is an element of the crime of which Johnson was convicted, and the jury should have been instructed that it had to find he had knowledge of any firearm it found he possessed, and an ability to exercise control over it. See Creamer v. State, 605 So. 2d 541 (Fla. 1st DCA 1992); White v. State, 539 So. 2d 577 (Fla. 5th DCA 1989). That element has been included in the standard jury instruction since 1992. See Creamer, 605 So. 2d at 542. If the jury was not so instructed, counsel should have objected.
The trial court did not request a state response with respect to these grounds, and they were not among those heard at the evidentiary hearing. In denying the motion, the trial court did not attach any portions of the record to refute these claims or otherwise explain its denial of them, as required by Rule 3.850(d).
Accordingly, the order is reversed in part for further proceedings with respect to the ninth, eleventh, and twenty-fifth grounds and the second part of the fourth ground. In all other respects, we affirm the trial court’s denial of the motion.
Affirmed in part, reversed in part, and remanded.
WARNER, STEVENSON and TAYLOR, JJ., concur. . We grant the motion for rehearing. However, we deny appellant's amended motion for rehearing.
. See Williams v. State, 110 So. 2d 654 (Fla. 1959); § 90.404, Fla. Stat.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Torie Thompson v. State, 911 So. 2d 1252 (Fla. 4th DCA 2005)…and that he was physically capable of perceiving the bulge underneath the seat cushion. A defendant has actual possession when there is evidence that the firearm was unqualifiedly and knowingly in his care, custody or control. See Johnson v. State, 890 So. 2d 432 (Fla. 4th DCA 2004) (knowledge of possession is an element of offense of possession of a firearm by convicted felon). The clearest example is eyewitness testimony placing it within his grasp. With that kind of direct evidence, knowledge may be presu…
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Parker v. State, 922 So. 2d 336 (Fla. 1st DCA 2006)…ve assistance of counsel based on failure to object to the admission of evidence of other crimes, wrongs or acts, as proscribed by section 90.404 of the Florida Evidence Code, can present a facially sufficient claim for relief. See Johnson v. State, 890 So. 2d 432 (Fla. 4th DCA 2004); Haynes v. State, 729 So. 2d 498 (Fla. 1st DCA 1999); Johnson v. State, 611 So. 2d 88 (Fla. 2d DCA 1992); Williams v. State, 447 So. 2d 442 (Fla. 5th DCA 1984) (on rehearing). However, the complaining party must also sufficiently…
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McClinton v. McNeil, 615 F. Supp. 2d 1310 (M.D. Fla. 2008)…1992) (reversing felon in possession conviction and remanding for new trial where trial court did not instruct jury as to knowledge requirement); Jones v. State, 596 So.2d 1221, 1222 (Fla. 5th DCA 1992) (same); see also Johnson v. State, 890 So.2d 432, 433 (Fla. 4th DCA 2004) (reversing denial of state *1327 habeas petition and remanding for further proceedings to determine whether jury was instructed as to the knowledge requirement in felon in possession case). Accordingly, the state court…
Authorities Cited
- Williams v. State, 110 So. 2d 654 (Fla. 1959)
- Adjustco, Inc. v. Sibley, 611 So. 2d 88 (Fla. 2d DCA 1992)
- Creamer v. State, 605 So. 2d 541 (Fla. 1st DCA 1992)
- Felton White v. State, 539 So. 2d 577 (Fla. 5th DCA 1989)
- State v. Martin, 539 So. 2d 577 (Fla. 5th DCA 1989)