KISHON LARHAME BIRCH

v.

STATE OF FLORIDA

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

________________________________ Case No. 5D2024-0521 LT Case No. 2012-CF-004904-A ________________________________ KISHON LARHAME BIRCH, Appellant, v. STATE OF FLORIDA, Appellee. _______________________________ 3.850 Appeal from the Circuit Court for Duval County. Jeb T. Branham, Judge. Ryan E. McFarland, Jacksonville, for Appellant. James Uthmeier, Attorney General, and Amanda A. Uwaibi, Assistant Attorney General, Tallahassee, for Appellee. May 9, 2025

MACIVER, J.

Appellant, Kishon Larhame Birch, challenges the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. Appellant raised three issues of ineffective assistance of trial counsel in his motion, and because we agree that the postconviction court erred by summarily denying the motion, we reverse the summary denial and remand for further proceedings.

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I.

In January 2016, Appellant was acquitted on a charge of second-degree murder but was found guilty of possession of a firearm by a convicted felon and sentenced to 30 years in prison as a habitual violent felony offender. The First District Court of Appeal affirmed with a written opinion. Birch v. State, 248 So. 3d 1213 (Fla. 1st DCA 2018). Appellant moved for postconviction relief on three grounds:

1. That counsel was ineffective for failing to sever the

murder charge from the possession charge. 2. That counsel was ineffective for failing to object to jury instructions on constructive possession.

3. That counsel was ineffective for failing to advise

Appellant that his testimony was necessary to support a necessity defense and to warrant a necessity jury instruction. After the State responded and Appellant replied to that response, the postconviction court denied relief without a hearing. This appeal followed.

II.

Claims of ineffective assistance of counsel are governed by the standard set forth in the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 687 (1984). First, counsel’s performance must be shown to be deficient. Id. “[C]ounsel’s errors must have been so serious that the constitutional guarantee of counsel was not satisfied.” Harris v. State, 295 So. 3d 855, 856 (Fla. 1st DCA 2020). When examining counsel’s performance, an objective standard of reasonableness applies, and great deference is given to counsel’s performance. Strickland, 466 U.S. at 688–89. The defendant bears the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” Id.

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III.

A. Severing the Charges

Appellant first argues that counsel was ineffective for failing to sever the murder charge from the possession charge. Appellant claims counsel advised that it would be better to try all charges at once and proceed under a defense of necessity, and further advised Appellant to not testify. Appellant claims that if the charges had been severed, he would have been free to testify in the possession trial. In summarily denying this claim, the postconviction court noted that bifurcation was discussed at length prior to jury selection. But to conclusively refute this ground to warrant summary denial, the discussion would need to specifically contradict the allegations in the motion. Harris, 295 So. 3d at 856 (citing Alfred v. State, 998 So. 2d 1197, 1199 (Fla. 4th DCA 2009)). On the record before us, the discussion held before jury selection did not include discussion about counsel’s advice to Appellant. Thus, the denial of this ground is reversed and remanded for reconsideration or an evidentiary hearing.

B. Jury Instruction

Appellant next argues that counsel was ineffective for failing to object to a constructive possession instruction. According to Appellant, the State charged him with actual possession of the firearm, but did not allege that he did so during the commission of the offense. But the jury was instructed that they could find Appellant guilty by either a constructive or actual theory of possession. The postconviction court observed that this was considered by the First District Court of Appeal in Appellant’s direct appeal. Based on that opinion, the postconviction court concluded that any objection by counsel would not have altered the outcome of the trial. But the First District held that the matter was unpreserved and only reviewed for fundamental error. Birch, 248 So. 3d at 1218.

IV.

Accordingly, the trial court’s final order is REVERSED and REMANDED for further proceedings consistent with this opinion.

BOATWRIGHT and KILBANE, JJ., concur. _____________________________