Bateson v. State
| Decision Date | 05 November 1987 |
| Docket Number | No. BQ-404,BQ-404 |
| Citation | 12 Fla. L. Weekly 2543,516 So.2d 280 |
| Parties | 12 Fla. L. Weekly 2543 Wayne Floyd BATESON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Wayne Floyd Bateson, pro se.
Robert A. Butterworth, Atty. Gen., and Elizabeth Masters, Asst. Atty. Gen., Tallahassee, for appellee.
This is an appeal from the trial court's denial of appellant's motion for post-conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse in part, and remand with directions.
Although appellant presents numerous allegations which he maintains entitle him to relief, his claims predicated on ineffective assistance of counsel are the only claims cognizable on a collateral attack on his convictions for sexual battery and kidnapping. The other allegations raised in the motion were or could have been raised on direct appeal and are, therefore, precluded from review in a rule 3.850 motion. Mikenas v. State, 460 So.2d 359, 361 (Fla.1984); Rogers v. State, 510 So.2d 1230 (Fla. 1st DCA 1987).
Before deciding the merits of appellant's claims, we requested the Office of the Attorney General to file a brief addressing only the allegations of ineffective assistance of counsel raised in the motion. After careful consideration of the points raised by appellant and of the brief filed by the Assistant Attorney General, we have determined that only one of the allegations of ineffective assistance of counsel merits further consideration.
Appellant was charged in a two-count information with sexual battery, under section 794.011(3), Florida Statutes, and with kidnapping under section 787.01(1)(a)2., Florida Statutes. The statutory provision with which we are concerned is section 794.011(3), which sets forth the offense of sexual battery committed by a threat to use a deadly weapon or the use of actual physical force likely to cause serious personal injury. 1 Appellant contends trial counsel was ineffective for failing to request a jury instruction on the lesser included offense of sexual battery as to count one.
Florida Rule of Criminal Procedure 3.510(b) 2 provides that the jury may convict a defendant for an offense which "as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the ... information," so long as the evidence in the case will support the lesser included offense. The law is well settled that the trial court has no discretion to refuse a defense request to instruct on necessarily lesser included offenses, i.e., "a lesser offense that is always included in the major offense." State v. Wimberly, 498 So.2d 929, 932 (Fla.1986). Pursuant to the Schedule of Lesser Included Offenses in Florida Standard Jury Instructions (Criminal), the category 1 or "necessarily," lesser included offenses of subsection (3) sexual battery are: (1) battery, in violation of section 784.03, Florida Statutes; 3 and (2) sexual battery, in violation of section 794.011(5), Florida Statutes. 4 The offense of battery is a first degree misdemeanor, for which a maximum sentence of one year may be imposed. Section 775.082(4)(a), Fla.Stat. (1983). The offense of sexual battery under section 794.011(5) is a second degree felony punishable by a maximum sentence of fifteen years. Section 775.082(3)(c), Fla.Stat. (1983). In any case in which there is sufficient proof of The defendant's entitlement to an instruction on lesser included offenses is grounded upon his right to an instruction that affords the jury an opportunity to exercise its "pardon power." State v. Wimberly, 498 So.2d at 932; State v. Baker, 456 So.2d 419, 422 (Fla.1984); State v. Bruns, 429 So.2d 307 (Fla.1983); Mosley v. State, 482 So.2d 530, 532 fn. 1 (Fla. 1st DCA) approved by 492 So.2d 1071 (Fla.1986); Weller v. State, 501 So.2d 1291, 1292 (Fla. 4th DCA 1986).
the greater offense to go to the jury, there is proof of a lesser offense which is necessarily included within the offense charged. Wheat v. State, 433 So.2d 1290 (Fla. 1st DCA 1983), petition for review denied, 444 So.2d 418 (Fla.1984), citing Brown v. State, 206 So.2d 377 (Fla.1968).
On the basis of the record before this court, it appears the evidence in this case is consistent with and would support a finding of guilt on a section 794.011(5) charge. Since it is conceivable that defense counsel's failure to request a jury instruction as to the lesser included offenses of count one deprived appellant of the possibility of a "jury pardon," we reverse that portion of the order denying post-conviction relief only as it pertains to trial counsel's failure to request a jury instruction on the lesser included offenses on the count one charge of sexual battery.
Accordingly, this cause is reversed and remanded with directions to the trial court to conduct further proceedings as provided in rule 3.850, on the issue of defense counsel's failure to request a jury instruction on lesser included offenses as to count one. In all other respects, the order denying the motion for post-conviction relief is affirmed.
The state raises two arguments in its motion for rehearing of this court's opinion filed November 5, 1987. First, the state attaches copies of the record in support of its contention that the trial court instructed the jury fully on the lesser included offenses of sexual battery. This is not an acceptable practice. This court has held that "[i]t is inappropriate to have the state select portions of the record below to support the appealed order when the trial court has not previously done so." Thames v. State, 454 So.2d 1061, 1066 (Fla. 1st DCA 1984).
Second, while conceding that the jury was not instructed as to section 794.011(4), Florida Statutes, the state attempts to interpret our opinion as meaning that instructions on category two offenses are not required. We suggest that this is an erroneous interpretation of this court's opinion. Whether a category two instruction should be given depends upon the circumstances of a given case. Gillespie v. State, 440 So.2d 8 (Fla. 1st DCA 1983), review denied, 475 So.2d 222 (Fla.1985). While our opinion specifically addressed category one lesser included offenses of section 794.011(3), it did not rule out the possibility that a failure to request a category two lesser included offense would, in the circumstances of a particular case, constitute ineffective assistance of counsel. Accordingly, the state's motion is denied.
We have determined that the motion for post-conviction relief is not insufficient on its face, insofar as the claim of ineffective assistance of counsel pertains to the failure to request a jury instruction as to lesser...
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