James v. State, 5D04-1338.
| Decision Date | 20 August 2004 |
| Docket Number | No. 5D04-1338.,5D04-1338. |
| Citation | 881 So.2d 85 |
| Parties | Curtis JAMES, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Curtis James, Bonifay, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
Defendant, Curtis James, appeals the summary denial of his rule 3.850 motion. We affirm the denial of his motion, except as to ground five.
Defendant was tried and convicted of fleeing or attempting to elude a law enforcement officer with lights and sirens and with wanton disregard, a second degree felony. In ground five of his postconviction motion, defendant argues that his trial counsel was ineffective for failing to consult with defendant regarding the jury instructions for lesser included offenses and for failing to request an instruction for the lesser included offense of fleeing or attempting to elude an officer with lights and sirens, but without wanton disregard, a third degree felony.
The trial court denied this ground, pointing out that an instruction was given for the lesser offense of misdemeanor fleeing, but the jury nonetheless convicted defendant of the charged offense. The court concluded that there was no reasonable probability that the jury would have declined to follow the law and would have exercised its jury pardon power, and therefore prejudice was not established.
The trial court relied on Sanders v. State, 847 So.2d 504 (Fla. 1st DCA 2003), which held that a claim that counsel was ineffective for not requesting a jury instruction for a one-step-removed lesser included offense could not satisfy the requirement to show prejudice. However, in Vickery v. State, 869 So.2d 623 (Fla. 5th DCA 2004), this Court held that Sanders conflicts with this Court's decisions holding that the failure of counsel to request a lesser included jury instruction states a colorable claim of ineffective assistance.
Although the State argues that counsel's decision not to request the lesser included instruction was a strategic choice which should not be second guessed, such a determination should generally only be made after an evidentiary hearing. SeeState v. Williams, 797 So.2d 1235 (Fla.2001); Morrison v. State, 860 So.2d 458 (Fla. 1st DCA 2003). Therefore, we reverse the trial court's order as to this ground only and remand for further consideration.
AFFIRMED IN PART; REVERSED IN PART and REMANDED.
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James v. State, 5D04-1338.
...SUPREME COURT OF FLORIDA PLEUS, J. This appeal has been reinstated on remand from the supreme court as our decision in James v. State, 881 So.2d 85 (Fla. 5th DCA 2004), was quashed in State v. Vickery, 961 So.2d 309 (Fla.2007). The Supreme Court of Florida directed this court to reconsider ......
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State v. Vickery
...conflict with the First District Court of Appeal. These are: Charles v. State, 890 So.2d 542 (Fla. 4th DCA 2005), James v. State, 881 So.2d 85 (Fla. 5th DCA 2004), and Vickery v. State, 869 So.2d 623 (Fla. 5th DCA 2004). The issue is whether a claim that alleges ineffective assistance of co......
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