MICHAEL GRIMSLEY, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Michael Grimsley petitioned for relief based on ineffective assistance of appellate counsel who failed to raise a fundamental error claim regarding a defective jury instruction on justifiable use of force in self-defense. The court granted the petition, finding appellate counsel ineffective, and reversed Grimsley's aggravated battery conviction for a new trial.
Yes. Appellate counsel was ineffective for failing to raise the argument that the erroneous self-defense instruction constituted fundamental error, particularly where self-defense was Grimsley's only defense and the instruction negated that defense.
[1] Appellate counsel renders ineffective assistance by failing to argue that a jury instruction on the justifiable use of force constituted fundamental error when that instr…
[2] A jury instruction on the forcible felony exception to self-defense is erroneous when it circularly states that the use of force is not justifiable if the defendant was a…
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Join FLexlaw to unlock all legal intelligence“Although this court has determined that the giving of this instruction constitutes fundamental error under similar circumstances, we are precluded from reviewing the issue because it was not raised on appeal.”
Establishes that the instruction error was already recognized as fundamental but couldn't be reviewed without direct appellate argument
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Join FLexlaw to unlock all legal intelligenceGrimsley was convicted of aggravated battery after a jury trial. He testified that he punched the victim approximately six times in self-defense after…
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CANADY, Judge.
Michael Grimsley, in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), alleges that his appellate counsel was ineffective for failing to argue in the direct appeal of his aggravated battery conviction that the instruction on the justifiable use of force, which was given to the jury at trial, constituted fundamental error. We agree that appellate counsel rendered ineffective assistance when she neglected to raise this issue. Accordingly, we grant the petition, reverse Grimsley’s conviction, vacate the sentence imposed thereon, and remand for a new trial.
This court, in Grimsley v. State, 939 So. 2d 123 (Fla. 2d DCA 2006), affirmed Grimsley’s aggravated battery conviction and ensuing sentence. In so doing, we stated:
Our review of the record revealed that the trial court erroneously gave the standard jury instruction regarding the forcible felony exception to self-defense. See York v. State, 932 So. 2d 413, 415-16 (Fla. 2d DCA 2006); Houston v. State, 919 So. 2d 489, 490 (Fla. 2d DCA 2005); Zuniga v. State, 869 So. 2d 1239, 1240 (Fla. 2d DCA 2004). Although this court has determined that the giving of this instruction constitutes fundamental error under similar circumstances, see id., we are precluded from reviewing the issue because it was not raised on appeal. Our affirmance is therefore without prejudice to any right Grimsley might have to file a motion for appropriate postconviction relief.
Id. at 125. In response to the above language, Grimsley filed the present petition.
This court’s opinion in York v. State, 932 So. 2d 413 (Fla. 2d DCA 2006), issued during the pendency of the direct appeal in this case. York was convicted after jury trial of aggravated battery and shooting into a vehicle. The trial court instructed the jury that “ ‘the use of force likely to cause death or great bodily harm is not justifiable if you find ... [York] was attempting to commit, or committing, or escaping after the commission of aggravated battery.’ ” Id. at 415. In York, we listed a catalogue of cases wherein a similar “circular” self-defense instruction was determined to be fundamental error in each case. Id. at 415-16. We concluded that appellate counsel was ineffective for not arguing that the instruction in York constituted fundamental error because York’s self-defense claim, which was supported by the testimony, was the crux of the case and the effect of the erroneous instruction was to negate York’s only defense. Id. at 416.
In the present case, Grimsley testified that he punched the victim approximately six times in self-defense after the victim physically attacked him. Grimsley presented no other defense to the charge, and his self-defense claim was the crux of the case. The jury was instructed that the “use of force not likely to cause death or great bodily harm is not justifiable if you find ... Michael Grimsley was attempting to commit, committing or escaping after the commission of aggravated battery.” We conclude, therefore, that appellate counsel rendered ineffective assistance in not arguing that this “circular” self-defense instruction constituted fundamental error. Because a new appeal would be redundant in this case, we reverse the conviction, vacate the sentence, and direct that Grimsley be retried. See Brewer v. State, 954 So. 2d 110, 111-12 (Fla. 2d DCA 2007).
Petition granted.
DAVIS and WALLACE, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Riley v. State, 25 So. 3d 1 (Fla. 1st DCA 2008)…la. 2d DCA 2004). However, where a second appeal would be redundant or unnecessary, it is appropriate to simply grant petitioner the relief to which he would be entitled had the issue been raised in the original appeal. See, e.g., Grimsley v. State, 967 So. 2d 1132 (Fla. 2d DCA 2007); Jones v. State, 964 So. 2d 855 (Fla. 2d DCA 2007); Evans v. State, 904 So. 2d 638 (Fla. 1st DCA 2005). In this case, whether the error is fundamental is not in question, the harmless error doctrine is not applicable, and we can d…
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Anderson v. State, 988 So. 2d 144 (Fla. 1st DCA 2008)…al appeal. However, where a second appeal would be redundant or unnecessary, it is appropriate to simply grant petitioner the relief to which he would have been entitled had the issue been raised in the original appeal. See, e.g., Grimsley v. State, 967 So. 2d 1132 (Fla. 2d DCA 2007); Jones v. State, 964 So. 2d 855 (Fla. 2d DCA 2007); Evans v. State, 904 So. 2d 638 (Fla. 1st DCA 2005). Because the state has posited no meaningful argument refuting petitioner’s contention that his conviction was improperly enhan…
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Wolfork v. State, 992 So. 2d 907 (Fla. 2d DCA 2008)…fundamental error. Because a new appeal would be redundant in this instance, we reverse Wolfork’s conviction for aggravated battery on a law enforcement officer, vacate the sentence imposed thereon, and remand for a new trial. See Grimsley v. State, 967 So. 2d 1132,1134 (Fla. 2d DCA 2007). Petition granted. WHATLEY and STRINGER, JJ„ Concur. . The same instruction was provided to the jury for the lesser-included offense of aggravated battery.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Zuniga v. State, 869 So. 2d 1239 (Fla. 2d DCA 2004)
- York v. State, 932 So. 2d 413 (Fla. 2d DCA 2006)
- Houston v. State, 919 So. 2d 489 (Fla. 2d DCA 2005)
- Grimsley v. State, 939 So. 2d 123 (Fla. 2d DCA 2006)
- In re Commitment OF James J. Steen. James J. Steen v. State, 954 So. 2d 110 (Fla. 2d DCA 2007)