VICTOR BOUIE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court reviewed a lower court's denial of postconviction relief. It affirmed most claims but reversed and remanded one claim regarding ineffective assistance of counsel for failing to object to a jury instruction.
Yes, the claim is facially sufficient because the forcible felony exception instruction may have improperly negated the appellant's self-defense theory of the case, and the record does not refute this assertion.
[1] A claim of ineffective assistance of counsel based on counsel's failure to object to a jury instruction is facially sufficient if the instruction negated the defendant's…
[2] A defendant may not avail himself of the defense of self-defense if he is engaged in attempting, committing, or escaping after the commission of a forcible felony.
Previewing 2 of 3 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“The forcible felony exception “provides that a defendant may not avail himself of the defense of self-defense if he is engaged in attempting, committing, or escaping after the commission of a forcible felony.””
Explains the legal principle at the heart of the ineffective assistance of counsel claim.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe appellant argued that his counsel was ineffective for not objecting to a jury instruction regarding the "forcible felony exception." This exceptio…
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The appellant appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 8.850. We affirm the denial of all but one of the appellant’s claims. For the reasons discussed below, we reverse and remand the appellant’s claim that counsel was ineffective for failing to object to a portion of the jury instructions.
The appellant asserts that counsel failed to object when the trial court read the forcible felony exception for count one. The forcible felony exception “provides that a defendant may not avail himself of the defense of self-defense if he is engaged in attempting, committing, or escaping after the commission of a forcible felony.” Barnes v. State, 12 So.3d 797 (Fla. 5th DCA 2009). In Stoute v. State, 987 So.2d 748 (Fla. 4th DCA 2008), a defendant alleged that counsel was ineffective for failing to object to the giving of the forcible felony instruction which was not applicable and deprived him of his theory of defense. This Court reversed and remanded for a new trial, holding that because the instruction negated the defendant’s only theory of defense, that being self-defense, the prejudice prong was satisfied. Here, the appellant alleges that no independent forcible felony existed that would justify the trial court reading, or the jury considering, the forcible felony exception instruction in deciding the verdict on count one and that both parties below agreed it did not apply to count one. It also appears that the appellant argued self-defense as his theory of defense to count one. Thus, the appellant’s claim is facially sufficient and not refuted by the record. Accordingly, we reverse the denial of the appellant’s claim that counsel was ineffective for failing to object to the trial court giving the forcible felony instruction and remand for the trial court to attach portions of the record refuting the appellant’s allegations or to conduct an eviden-tiary hearing.
AFFIRMED in part and REVERSED and REMANDED in part.
BARFIELD, VAN NORTWICK, and CLARK, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Smith v. State, 76 So. 3d 379 (Fla. 1st DCA 2011)…ng that trial counsel’s failure to object to inclusion of inapplicable “forcible felony” instruction in prosecution for aggravated battery constituted ineffective assistance, where the instruction negated the theory of self-defense); Bouie v. State, 27 So. 3d 88 (Fla. 1st DCA 2009); Stoute v. State, 987 So. 2d 748, 749-50 (Fla. 4th DCA 2008). Compounding the confusion, the court misread another portion of the standard instruction, telling the jury that if it was convinced that Appellant was justified in us…
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Sloss v. State, 45 So. 3d 66 (Fla. 5th DCA 2010)…proper summary denial of a Rule 3.850 motion in this type of case would be a remand to the trial court for the attachment of portions of the record refuting the appellant’s allegations or to conduct an evidentiary hearing. See, e.g., Bouie v. State, 27 So. 3d 88 (Fla. 1st DCA 2009). However, given the facts of this case and this court’s prior review of the record, there would appear to be little reason to remand for an evidentiary hearing.…
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Terald Redding v. State, 41 So. 3d 353 (Fla. 2d DCA 2010)…t be deleted). Because the postconviction court merely adopted the State’s response in denying claim three and the State’s response did not conclusively refute the claim, we must reverse the court’s summary denial of claim three. See Bouie v. State, 27 So. 3d 88, 89 (Fla. 1st DCA 2009) (reversing the summary denial of a facially sufficient claim that counsel was ineffective for failing to object to the erroneous reading of the forcible-felony exception where the claim was not refuted by the record). Accord…
Authorities Cited
- Stoute v. State, 987 So. 2d 748 (Fla. 4th DCA 2008)
- Barnes v. State, 12 So. 3d 797 (Fla. 5th DCA 2009)