LEWIS D. CRITTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed the summary denial of a postconviction ineffective assistance of counsel claim based on counsel's failure to request jury instructions on necessarily lesser included offenses (simple assault and battery), but affirmed the denial as to other claims.
Failure to instruct on necessarily lesser included offenses when requested constitutes reversible error and states a facially sufficient claim for ineffective assistance of counsel.
[1] Failure to instruct the jury on necessarily lesser included offenses when requested constitutes reversible error and provides a basis for postconviction relief on ineffec…
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Join FLexlaw to unlock all legal intelligenceAppellant was charged with aggravated assault and aggravated battery. Simple assault and simple battery are necessarily lesser included offenses to th…
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PER CURIAM.
We reverse the summary denial of appellant’s motion for posteonviction relief concerning his claim of ineffective assistance of counsel based on counsel’s alleged failure to object to the absence of jury instructions for simple assault and simple battery.
Appellant was charged with aggravated assault and aggravated battery. Simple assault and simple battery are necessarily lesser included offenses to the aggravated charges. Fla.Std.Jury Instr. (Crim.) 287-88. Failure to instruct on the necessarily lesser included crimes, when requested, is reversible error. Wheat v. State, 433 So. 2d 1290 (Fla. 1st DCA 1983), review denied, 444 So. 2d 418 (Fla.1984); Foster v. State, 448 So. 2d 1239 (Fla. 5th DCA 1984). Appellant’s motion is facially sufficient as to this claim, because it sets forth the alleged deficient act and asserts prejudice due to the fact that the jury was deprived of its pardoning power. The trial court is therefore directed on re mand either to attach a copy of that portion of the record which conclusively shows that appellant is not entitled to relief or to hold an evidentiary hearing on the claim.
We affirm the summary denial of the motion as to the remainder of appellant’s claims.
AFFIRMED in part, REVERSED in part and REMANDED for further proceedings.
ERVIN, WEBSTER and MICKLE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Sanders v. State, 946 So. 2d 953 (Fla. 2006)…vieiv denied, 807 So. 2d 655 (Fla.2002)). The First District [*956] expressly receded from its earlier decisions holding otherwise. Id. (receding from McClendon v. State, 765 So. 2d 247 (Fla. 1st DCA 2000); Hill, 788 So. 2d at 315; Critton v. State, 668 So. 2d 242 (Fla. 1st DCA 1996); Kennedy v. State, 637 So. 2d 987 (Fla. 1st DCA 1994); and Bateson v. State, 516 So. 2d 280 (Fla. 1st DCA 1987)). It certified conflict with Peffley v. State, 766 So. 2d 418 (Fla. 4th DCA 2000), Oehling v. State, 659 So. 2d 1226…
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Sanders v. State, 847 So. 2d 504 (Fla. 1st DCA 2003)…now satisfied that a proper application of Strickland mandates a negative answer to the question. The order under review is accordingly affirmed. We recede from Bateson, Hill, McClendon v. State, 765 So. 2d 247 (Fla. 1st DCA 2000), Critton v. State, 668 So. 2d 242 (Fla. 1st DCA 1996), and Kennedy v. State, 637 So. 2d 987 (Fla. 1st DCA 1994). We also certify conflict with decisions such as Peffley v. State, 766 So. 2d 418 (Fla. 4th DCA 2000), Oehling v. State, 659 So. 2d 1226 (Fla. 5th DCA 1995), and Newton v.…
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Amok Hill v. State, 788 So. 2d 315 (Fla. 1st DCA 2001)…ng has been applied in many cases from this and other Florida courts over the years since Bateson was decided. See, e.g., Peffley v. State, 766 So. 2d 418 (Fla. 4th DCA 2000); McClendon v. State, 765 So. 2d 247 (Fla. 1st DCA 2000); Critton v. State, 668 So. 2d 242 (Fla. 1st DCA 1996); Oehling v. State, 659 So. 2d 1226 (Fla. 5th DCA 1995); Kennedy v. State, 687 So. 2d 987 (Fla. 1st DCA 1994); Newton v. State, 527 So. 2d 876 (Fla. 2d DCA 1988). See also Bethea v. State, 767 So. 2d 630 (Fla. 5th DCA 2000). But t…
Authorities Cited
- Wheat v. State, 433 So. 2d 1290 (Fla. 1st DCA 1983)
- Foster v. State, 448 So. 2d 1239 (Fla. 5th DCA 1984)