DEMETRIUS WOODY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2010-02-10
No. 4D08-2017
GROSS, C.J., and LEVINE, J., concur.
27 So. 3d 745 Florida District Court of Appeal, Fourth District (2010) Positive Treatment
Cited by 5 cases

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Holding

The court held that the defendant's claim of ineffective assistance of counsel regarding an incomplete jury instruction on manslaughter was not conclusively refuted by the record and required further review.


Headnotes

[1] A trial court may summarily deny a post-conviction relief motion only if the claims are facially invalid or conclusively refuted by the record.

[2] When manslaughter is a possible verdict, the jury must be instructed on the definitions of justifiable and excusable homicide, unless defense counsel affirmatively agreed…

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Facts & Procedural History

The defendant, charged with second-degree murder, alleged ineffective assistance of counsel for failing to object to an incomplete jury instruction on…

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Opinion of the Court
MAY, J.

MAY, J.

The defendant appeals an order denying his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. Among the issues raised, he alleged ineffective assistance of counsel based upon an *746improper Miranda1 warning and his counsel’s failure to object to an incomplete jury instruction. We affirm the court’s order on the Miranda issue. See Anthony v. State, 980 So.2d 610, 612 (Fla. 4th DCA 2008) (stating that trial counsel was not ineffective by failing to raise the Miranda issue prior to the Roberts2 decision). However, we reverse and remand the case on the jury instruction issue for either the attachment of relevant portions of the record that conclusively refute the defendant’s claims or an evidentiary hearing. We find no merit in the other issues raised.

The defendant alleges his trial counsel was ineffective when he failed “to object, contest, and preserve for intelligent appellate review, the trial court’s erroneous incomplete jury instruction on manslaughter.” The defendant was charged with murder in the second degree with a firearm. During the charge conference, defense counsel requested instructions on manslaughter including justifiable and excusable homicide. According to the record before us, the trial court instructed the jury as follows:

The Court: If you decide that, a main accusation is not proven beyond a reasonable doubt, you need next to decide if the defendant was guilty of the lesser included crime. The lesser included crime [of] Murder in the Second Degree with a firearm is Manslaughter. Before you can find the defendant guilty of manslaughter the state must prove the following elements beyond a reasonable doubt:
1. Ezra Buckner is dead.
2. The death was caused by Demetrius Woody. A) Intentionally Caused the death of Ezra Buckner, or B) The death was caused by the culpable negligence of Demetrius Lamar Woody. However, the defendant cannot be guilty of manslaughter if the defendant was justified or excusable homicide.

The defendant claims trial counsel was ineffective in failing to object when the trial court omitted the definitions of justifiable and excusable homicide from the instruction. He argues that had the proper instruction been given, the jury could have found him not guilty based on his claim of self-defense. Here, the trial court summarily denied the ineffective assistance of counsel claim because the jury instruction issue could have been raised on direct appeal.3

As a general rule, where manslaughter appears on the verdict form, the jury must be instructed as to the definitions of justifiable and excusable homicide because manslaughter is a residual offense, which can be fully defined only by exclusion of the properly explained defenses of excusable and justifiable homicide. Avila v. State, 745 So.2d 983, 984 (Fla. 4th DCA 1999). “The only exception ... is where defense counsel affirmatively agreed to or requested the incomplete instruction.” State v. Lucas, 645 So.2d 425, 427 (Fla.1994) (citing Armstrong v. State, 579 So.2d 734 (Fla.1991)).

Although the record before us reveals that the definitions were requested, it does not reflect whether the trial court gave the full instruction including the definitions of excusable and justifiable homi*747cide or whether defense counsel objected to or agreed to the modified instruction.4 The trial court summarily denied this claim. Such a resolution is proper only where the claims are either facially invalid or conclusively refuted by the record. Willacy v. State, 967 So.2d 131, 138 (Fla.2007).

This court has previously reversed a summary denial and ordered an evidentia-ry hearing on a Rule 3.850 motion where the trial court had, allegedly due to trial counsel’s mistake, failed to instruct on excusable homicide as part of the manslaughter instruction. See Platt v. State, 697 So.2d 989 (Fla. 4th DCA 1997). For the reasons explained in Platt, we reverse and remand the summary denial for attachment of the record conclusively refuting the defendant’s claim or for an evidentiary hearing on the issue.

Affirmed in part; Reversed in part and Remanded.

GROSS, C.J., and LEVINE, J., concur.


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Citator

Cited By

  • Arteaga v. State, 246 So. 3d 533 (Fla. 2d DCA 2018)
  • Joynt v. State, 98 So. 3d 776 (Fla. 4th DCA 2012)
    …he omission of this instruction. [*778] Based on the foregoing, we remand this case for the trial court to conduct an evi-dentiary hearing on that argument or attach portions of the record which conclusively refute that argument. See Woody v. State, 27 So. 3d 745, 746-47 (Fla. 4th DCA 2010) (reversing for an evidentiary hearing or the attachment of portions of the record which conclusively refute the defendant’s claim that trial counsel was ineffective in failing to object when the trial court omitted the de…

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