498 So.2d 902 (Fla. 1986), 67335, Lusk v. State

Docket Nº:67335.
Citation:498 So.2d 902, 11 Fla. L. Weekly 615
Opinion Judge:Author: Ehrlich
Party Name:Bobby Earl LUSK, Appellant, v. STATE of Florida, Appellee.
Attorney:Richard Ware Levitt, for Appellant.
Case Date:November 26, 1986
Court:Supreme Court of Florida

Page 902

498 So.2d 902 (Fla. 1986)

11 Fla. L. Weekly 615

Bobby Earl LUSK, Appellant,


STATE of Florida, Appellee.

No. 67335.

Supreme Court of Florida.

November 26, 1986

Rehearing Denied Jan. 5, 1987.

Page 903

Richard Ware Levitt, New York City, for appellant.

Jim Smith, Atty. Gen., and Mark C. Menser and John W. Tiedemann, Asst. Attys. Gen., Tallahassee, for appellee.

EHRLICH, Justice.

Appellant, while an inmate at Florida State Prison in 1978, stabbed to death another inmate, Michael Hall, during Thanksgiving Day lunch and in front of numerous witnesses. A jury convicted appellant of first-degree murder and recommended a life sentence. The trial court, however, overrode the jury and imposed a sentence of death. We affirmed the conviction and sentence in Lusk v. State, 446 So.2d 1038 (Fla.), cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984). This appeal is from the trial court's denial, following an evidentiary hearing, of post-conviction relief, pursuant to Rule of Criminal Procedure 3.850. We have jurisdiction, article V, section 3(b)(1), Florida Constitution. We affirm.

The only issue raised by appellant which warrants discussion is that he received ineffective assistance of counsel at the guilt and penalty phases of his trial. As set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the proper standard for reviewing counsel's performance is whether a defendant received "reasonably effective assistance." Id. at 687, 104 S.Ct. at 2064. In order to determine whether counsel's performance fell below the level of reasonably effective assistance, the Court developed a two-part test:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to

Page 904

deprive the defendant of a fair trial, a trial whose result is reliable.

Id. In order to satisfy the first component of this test, a convicted defendant must identify acts or omissions of counsel that were not the result of reasonable professional judgment. Courts reviewing ineffectiveness claims must "determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. at 690, 104 S.Ct. at 2066. We find that under the facts presented, appellant has failed to satisfy this first component.

Employing the Strickland analysis requires us to evaluate the challenged conduct from "counsel's perspective at the time." Id. at 689, 104 S.Ct. at 2065. At the time of appellant's trial, his counsel was faced with defending a prisoner who was serving three consecutive life terms for two convictions of armed robbery and a simultaneous conviction for first-degree murder. Appellant...

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