ISMAEL GRILLO PERERA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in procedurally barring an ineffective assistance of counsel claim based on an erroneous jury instruction, as such claims can be raised in a postconviction relief petition.
[1] A claim of ineffective assistance of counsel based on an erroneous jury instruction can be raised in a postconviction relief petition, even if the error could have been r…
[2] A trial court errs by instructing a jury that sexual battery can be committed by an act of penetration or union when the information alleges sexual battery solely by pene…
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of sexual battery and alleged in a postconviction relief petition that his trial counsel was ineffective for failing to ob…
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Defendant, Ismael Perera (“Perera”), appeals from the trial court’s denial of his postconviction relief petition filed pursuant to Florida Rule of Criminal Procedure 3.850, alleging ineffective assistance of trial counsel. We reverse and remand with instructions.
Perera was charged with twenty-nine counts of sexual battery. He was found guilty as charged of twenty-two of those counts and received life in prison on each count to run consecutively. His appeal was affirmed by this Court. Perera v. State, 873 So.2d 389 (Fla. 3d DCA 2004). He then filed a petition for writ of habeas corpus, which was denied. Perera then filed the present rule 3.850 petition raising ten issues. Pursuant to an evidentiary hearing, the trial court denied all issues and also denied Perera’s motion for rehearing.
In issue 9 of his 3.850 motion, Perera alleged that his trial counsel was ineffective for failing to object to the trial court’s erroneous jury instruction on sexual battery in counts 7, 11, 15 and 19, which he claims is fundamental error. The information against him alleged sexual battery by penetration. The trial court instructed the jury that Perera could be found guilty of sexual battery if he committed an act of penetration or union. Perera’s defense counsel did not object to this instruction. At the 3.850 hearing, the trial court did not *1254reach the merits of this issue as the trial court found that the issue was procedurally barred because it could have been raised on direct appeal. We disagree with the trial court, as this type of error can be raised in a 3.850 petition and not just on direct appeal. See Bruno v. State, 807 So.2d 55 (Fla.2001). We therefore reverse and remand to the tidal court with directions to hold an evidentiary hearing and to make a determination on the merits of issue 9. See State v. Weaver, 957 So.2d 586 (Fla.2007); Jomolla v. State, 990 So.2d 1234 (Fla. 3d DCA 2008); Beasley v. State, 971 So.2d 228 (Fla. 4th DCA 2008).
Reversed and remanded with instructions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Malone v. State, 15 So. 3d 903 (Fla. 3d DCA 2009)…ct appeal and denied the motion on that basis. We reverse. First, Malone ai'gued that trial counsel was ineffective for failing to object to a “flawed jury instruction.” This was a claim that could be raised in a 3.850 motion. See Perera v. State, 6 So. 3d 1253, 1253-54 (Fla. 3d DCA 2009) (addressing the claim of an erroneous jury instruction and concluding “[a]t the 3.850 hearing, the trial court did not reach the mei'its of this issue as the trial court found that the issue was proeedurally barred becaus…
Authorities Cited
- Bruno v. State, 807 So. 2d 55 (Fla. 2001)
- State v. Weaver, 957 So. 2d 586 (Fla. 2007)
- Beasley v. State, 971 So. 2d 228 (Fla. 4th DCA 2008)
- Jomolla v. State, 990 So. 2d 1234 (Fla. 3d DCA 2008)
- Perera v. State, 873 So. 2d 389 (Fla. 3d DCA 2004)