RICKIE MATHIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a claim of ineffective assistance of counsel for failing to request a jury instruction on the justifiable use of non-deadly force is cognizable in a rule 3.850 motion.
[1] A claim that counsel was ineffective for failing to request a jury instruction on the justifiable use of non-deadly force is cognizable in a post-conviction motion.
[2] When the evidence does not establish as a matter of law whether the force used was deadly or non-deadly, a defendant is entitled to instructions on the justifiable use of…
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of aggravated battery for striking an inmate with a mop wringer. The defense argued the other inmate was the aggressor. Appell…
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PER CURIAM.
The appellant appeals the trial court’s summary denial of his post-conviction mo tion filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, the appellant raised four claims for relief. Because the trial court erred in summarily denying the appellant’s claim that his counsel was ineffective for failing to request a jury instruction on the justifiable use of non-deadly force, we reverse. All other issues raised in the appellant’s motion are affirmed without further discussion.
The appellant was charged and convicted of aggravated battery for striking another inmate with a mop wringer. The defense’s theory of the case was that the other inmate was the aggressor. The appellant alleged that counsel was ineffective for failing to request a jury instruction on the justifiable use of non-deadly force. Contrary to the trial court’s reasoning, a claim that counsel was ineffective for failing to request a jury instruction on self defense is cognizable in a rule 3.850 motion. Lenoir v. State, 741 So. 2d 1148 (Fla. 2d DCA 1999).
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. Williams v. State, 727 So. 2d 1062 (Fla. 4th DCA 1999); Caruthers v. State, 721 So. 2d 371 (Fla. 2d DCA 1998). The only type of force that has been determined to be deadly as a matter of a law is discharging a firearm. Williams, 727 So. 2d at 1063. Thus, it appears from the limited record before this court that the appellant was entitled to an instruction on the justifiable use of non-deadly force.
We therefore reverse the trial court’s summary denial of the appellant’s claim that counsel was ineffective for failing to request a jury instruction on the justifiable use of non-deadly force and remand for the trial court to attach portions of the record to conclusively refute the appellant’s claim or for an evidentiary hearing.
REVERSED in part, REMANDED in part, and AFFIRMED in part.
ERVIN, BARFIELD and POLSTON, JJ., concur.
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In re STANDARD JURY INSTRUCTIONS IN CRIM. CASES-REPORT 2017-07., 257 So. 3d 908 (Fla. 2018)…e, give only those parts of the instructions that are required by the evidence. However, unless the evidence establishes the force or threat of force was deadly or non-deadly as a matter of law, both 3.6(f) and 3.6(g) must be given. Mathis v. State, 863 So. 2d 464 (Fla. 1st DCA 2004). Only the discharge of a firearm, whether accidental or not, has been deemed to be the use of deadly force as a matter of law. Hosnedl v. State, 126 So. 3d 400 (Fla. 4th DCA 2013). Read in all cases. It is a defense to the crim…1 / 2
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Rickie Mathis v. State, 973 So. 2d 1153 (Fla. 1st DCA 2006)…failing to request a self-defense instruction is cognizable in a rule 3.850 motion and that from the limited record before us, it appeared that appellant was entitled to an instruction on the justifiable use of non-deadly force. See Mathis v. State, 863 So. 2d 464, 464-65 (Fla. 1st DCA 2004). At the evidentiary hearing on remand, Tony Bajoczky, an attorney who was accepted as an expert in criminal defense trial work, testified that he had reviewed the record in this case and opined that appellant’s trial cou…
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Barnes v. State, 983 So. 2d 47 (Fla. 1st DCA 2008)…ithout 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 [*48] justifiable use of both types of force.”). We also reve…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. State, 727 So. 2d 1062 (Fla. 4th DCA 1999)
- Caruthers v. State, 721 So. 2d 371 (Fla. 2d DCA 1998)
- Lenoir v. State, 741 So. 2d 1148 (Fla. 2d DCA 1999)