DAVID L. BARNES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed trial court's denial of post-conviction relief on two ineffective assistance of counsel claims regarding jury instructions on non-deadly force and prosecutor's closing argument, while affirming denial of remaining claims.
When evidence fails to establish whether force used was deadly or non-deadly, defendant is entitled to jury instructions on justifiable use of both types of force, and counsel is ineffective for failing to request such instructions.
[1] When evidence fails to establish as a matter of law whether force used was deadly or non-deadly, defendant is entitled to jury instructions on justifiable use of both typ…
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Join FLexlaw to unlock all legal intelligence“When the evidence fails to establish as a matter of law whether the type of force used was deadly or non-deadly, the defendant is entitled to instructions on the justifiable use of both types of force.”
Court citing Mathis v. State regarding entitlement to jury instructions on non-deadly force when evidence is ambiguous.
David L. Barnes appealed a trial court's denial of his post-conviction motion raising eight claims for relief, including claims that counsel was ineff…
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PER CURIAM.
David L. Barnes appeals the trial court’s denial of his post-conviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, the appellant raised eight claims for relief. Because the order denying relief together with attachments does not conclusively refute the appellant’s allegations in grounds one and four of the postconviction motion, we reverse. All other issues raised in the appellant’s motion are affirmed without further discussion.
We reverse the trial court’s denial of the appellant’s claim in ground one of the motion that counsel was ineffective for failing to request a jury instruction on the justifiable use of non-deadly force. Mathis v. State, 863 So. 2d 464, 465 (Fla. 1st DCA 2004)(“When the evidence fails to establish as a matter of law whether the type of force used was deadly or non-deadly, the defendant is entitled to instructions on the justifiable use of both types of force.”). We also reverse the trial court’s denial of ground four, which alleged defense counsel was ineffective for failing to object to improper closing argument by the prosecutor. We remand for the trial court to attach portions of the record to conclusively refute the appellant’s claims in grounds one and four or conduct an evidentiary hearing.
REVERSED in part, REMANDED in part, and AFFIRMED in part.
BARFIELD, WOLF, and HAWKES, JJ., concur.
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Citator
Cited By
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State v. Barnes, 24 So. 3d 1244 (Fla. 1st DCA 2009)…ns, we reversed the trial court’s denial with respect to the ineffective assistance claim and remanded with instructions to attach portions of the record that conclusively refuted Barnes’ claims or to conduct an evidentiary hearing. Barnes v. State, 983 So. 2d 47, 47-48 (Fla. 1st DCA 2008). On remand, the trial court appointed counsel for Barnes and conducted an evidentiary hearing. At the evidentiary hearing, trial counsel testified that he believed that Barnes’ version of the events, particularly Barnes’…
Authorities Cited
- Rickie Mathis v. State, 863 So. 2d 464 (Fla. 1st DCA 2004)