Harris v. State, No. 4D99-3202.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: TAYLOR, J.
• Citation: 768 So.2d 1179
• Parties: Henry HARRIS, Appellant, v. STATE of Florida, Appellee.
• Decision Date: 20 September 2000
• Docket Number: No. 4D99-3202.

768 So.2d 1179

Henry HARRIS, Appellant,
v.
STATE of Florida, Appellee

No. 4D99-3202.

District Court of Appeal of Florida, Fourth District.

September 20, 2000.

Rehearing Denied October 17, 2000.

768 So.2d 1180

Henry Harris, Lowell, pro se

Robert A. Butterworth, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

Henry Harris appeals the trial court's order summarily denying his rule 3.850 motion for postconviction relief. For the reasons explained below, we affirm.

Harris was charged with first degree murder in the shooting death of Vincent Troy Brewton, attempted first degree murder of Jimmy Wilcox, two counts of robbery with a firearm, attempted robbery with a firearm, two counts of kidnaping, burglary, arson, and grand theft. A jury found him not guilty of first degree murder and attempted robbery with a firearm, but found him guilty of: (1) attempted first degree murder; (2) one count of robbery with a firearm; (3) two counts of kidnaping with a firearm; (4) grand theft; (5) arson; (6) grand theft; and (7) the lesser included offense of trespass of an occupied structure. We reversed Harris' conviction for attempted first degree murder based on State v. Gray, 654 So.2d 552 (Fla.1995), and remanded for re-sentencing. See Harris v. State, 658 So.2d 1226 (Fla. 4th DCA 1995). After re-sentencing, Harris filed a second appeal challenging the score sheet used at re-sentencing. We affirmed per curiam in Harris v. State, 681 So.2d 291 (Fla. 4th DCA 1996).

Subsequently Harris filed a motion to vacate and correct his sentence pursuant to Florida Rule of Criminal Procedure 3.850. In his motion appellant raised three grounds for relief. We affirm the trial court's denial of postconviction relief on all three grounds, but address the third ground, in which appellant alleged that he was denied effective assistance of counsel due to his attorney's concessions during closing argument that appellant was guilty of lesser included offenses. Appellant contended that this was an unreasonable trial strategy, to which he did not consent.

Testimony at trial showed that appellant and co-defendant Brian Roberts forcibly entered the townhouse shared by Jimmy Wilcox and Vincent Brewton, robbed and abducted them at gun point, then transported them in the trunk of Wilcox's car to a remote grove. There, Roberts shot Brewton in the head as he lay face down on the ground. As Wilcox tried to run away, appellant fired several shots at him. Roberts caught up with Wilcox and held him while appellant struck him in the head with a shotgun. Wilcox struggled with Roberts and eventually managed to escape. Appellant and Roberts left the grove and abandoned the car at a location in Port St. Lucie. Sometime later, appellant returned to burn the car.

After his arrest, appellant gave a taped statement to the police. He told them that Brian Roberts had asked him for help in getting back possessions stolen from him by Wilcox and/or Brewton. Appellant said he agreed and that the plan was to enter the home, tie up the occupants, and retrieve Roberts' belongings. He said that it was not until he and Roberts were in or near the victims' home that Roberts mentioned killing them so as to avoid identification. He said he repeatedly urged Roberts to just "tie" them up and leave. A state witness, Darcey Macon, corroborated appellant's statement. Wilcox, the surviving victim, also testified. Although appellant admitted striking Wilcox on the head with a gun, he denied shooting at Wilcox as he was running away and said his gun accidently fired twice and missed him.

768 So.2d 1181

Defense counsel argued to the jury that appellant and Roberts' plan began as a college prank, intended not to kill, kidnap, or rob the victims but only to "dis'em" or "jack'em" and "mess with their minds." He asked the jury to find appellant not guilty on the charge of attempted first degree murder of Wilcox, and, instead, to find Harris guilty only of aggravated battery or assault. He argued

I will stipulate that you would not error [sic] in finding the defendant guilty under Count II of aggravated battery. That's what he did when he struck him on the head, that was an aggravated battery. He intentionally touched and struck Jimmy Wilcox against his will, can't get around it, I'm not going to try. He's guilty of this crime. Aggravated battery. Find him guilty of aggravated battery under Count II because that's what he's guilty of, or assault.

Similarly, defense counsel requested the jury to find appellant not guilty of the kidnaping charges. He urged the jury to consider the elements of false imprisonment in relation to appellant's conduct. He said:

Look at the definition of false imprisonment. Henry Tyrone Harris might be guilty of false imprisonment, it's the lesser included of the kidnaping charge.

It says, Before you can prove this crime Henry Tyrone Harris forcibly, secretly or by threat to confine, abduct, imprison or restrain because he did that. Henry Tyrone had no lawful authority, he clearly didn't.

Three, Henry Tyrone Harris acted for any purpose other than to hold for ransom, commit or...