MELBRA BREWER, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Melbra Brewer petitioned for relief based on ineffective assistance of appellate counsel. The court granted the petition, finding that appellate counsel was ineffective for failing to raise a fundamental error argument regarding a circular self-defense jury instruction that was contradicted by precedent decided before the appellate brief was filed.
Appellate counsel was ineffective for failing to argue that the circular self-defense instruction constituted fundamental error. The instruction was erroneous because it precluded the justifiable use of deadly force if the defendant was attempting to commit or committing an aggravated battery—a circular prohibition given that the alleged crime was aggravated battery. The conviction is reversed, the sentence is vacated, and the case is remanded for retrial.
[1] Appellate counsel is ineffective for failing to argue that a jury instruction stating that the use of force likely to cause death or great bodily harm is not justified if…
[2] A defendant is entitled to present the entire confession or admission against interest on cross-examination when the state offers only a part of it into evidence.
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 use of force likely to cause death or great bodily harm is not justified if you find the Defendant was attempting to commit, committing or escaping after the commission of an aggravated battery.”
The circular jury instruction that the court found to be erroneous and fundamental error because it precluded self-defense as a justification for the charged crime of aggravated battery.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBrewer was convicted of aggravated battery after a jury trial in which she claimed self-defense, testifying that the victim attacked her with a stick …
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VILLANTI, Judge.
Melbra Brewer, in her petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), raised six grounds alleging ineffective assistance of appellate counsel. We grant the petition as it relates to one of the grounds raised therein, and we deny, without discussion, the remaining grounds.1
Brewer was convicted, after jury trial, of aggravated battery. The judgment and sentence were affirmed on direct appeal. Brewer v. State, 908 So. 2d 1065 (Fla. 2d DCA 2005) (table decision). At trial, Brewer testified that the victim attacked her with a stick and a broken bottle and that she was acting in self-defense when she stabbed the victim with a knife. Two other witnesses testified for the defense that they saw the victim attack Brewer first. The victim’s testimony was that Brewer attacked her with a knife and she fought back using only her fists. None of the other State’s witnesses observed the actual confrontation between Brewer and the victim.
Brewer’s defense at trial was the justifiable use of deadly force. However, the trial court instructed the jury that “the use of force likely to cause death or great bodily harm is not justified if you find the Defendant was attempting to commit, committing or escaping after the commission of an aggravated battery.” Brewer contends, and we agree, that appellate counsel was ineffective for failing to argue that the above “circular” self-defense instruction constitutes fundamental error under the facts of this case. See Hernandez v. State, 884 So. 2d 281 (Fla. 2d DCA 2004); York v. State, 891 So. 2d 569 (Fla. 2d DCA 2004). Both Hernandez and York were issued months before the initial brief was filed in Brewer. Both cases held that appellate counsel was ineffective in failing to argue that the exact same instruction as the one given in Brewer constituted fundamental error under the facts of those cases. Because a new appeal would be redundant in this case, we reverse the conviction, vacate the sentence, and direct that Brewer be retried. See Hernandez, 884 So. 2d at 282 (citing Johnson v. Wainwright, 498 So. 2d 938, 939 (Fla.1986)).
Petition granted in part and denied in part.
SILBERMAN and WALLACE, JJ., Concur. . We do note, however, that the trial court erred in denying Brewer the opportunity to cross-examine the investigating detective regarding the entirety of Brewer’s statement to him on the incident in question. See Christopher v. State, 583 So. 2d 642, 646 (Fla.1991) (citing Louette v. State, 152 Fla. 495, 12 So. 2d 168 (1943)) (holding that "[w]hen the state offers in evidence a part of a confession or admission against interest, the defendant is entitled to bring out on cross-examination the entire confession or admission”).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Louette v. State, 152 Fla. 495 (Fla. 1943)
- Johnson v. Louie L. Wainwright, 498 So. 2d 938 (Fla. 1986)
- Christopher v. State, 583 So. 2d 642 (Fla. 1991)
- Frederico Hernandez v. State, 884 So. 2d 281 (Fla. 2d DCA 2004)
- York v. State, 891 So. 2d 569 (Fla. 2d DCA 2004)