Sanders v. State

• Decision Date: 31 March 2003
• Docket Number: No. 1D01-5033.,1D01-5033.
• Citation: 847 So.2d 504
• Parties: Robert Lavon SANDERS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

847 So.2d 504

Robert Lavon SANDERS, Appellant, v. STATE of Florida, Appellee.

No. 1D01-5033.

District Court of Appeal of Florida, First District.

March 31, 2003.

Appellant, pro se.

Robert A. Butterworth, Attorney General, and James W. Rogers, Senior Assistant Attorney General, Tallahassee, for Appellee.

EN BANC

PER CURIAM.

In order to accommodate Judge Ervin's desire to revise his separate opinion, the court withdraws its opinion of November 15, 2002, and reissues its original opinion with the revised separate opinion. No motion for rehearing will be entertained.

Asserting three grounds for reversal, Sanders appeals the summary denial of his rule 3.850 motion for postconviction relief. We affirm the order under review and find it necessary to address only one of the appellant's arguments, his argument that the trial court erred in summarily denying his claim that his trial counsel rendered ineffective assistance by failing to request a jury instruction as to a one-step-removed lesser included offense of one of the crimes of which he was convicted. We consider this case en banc to recede from a line of authority holding that such a claim is a colorable claim under rule 3.850.

As recently explained in Hill v. State, 788 So.2d 315 (Fla. 1st DCA 2001),review denied, 807 So.2d 655 (Fla.2002), many decisions from this and other district courts of appeal hold that a defendant states a colorable basis for relief under rule 3.850 when he asserts that his trial counsel incompetently failed to request an instruction as to a one-step-removed lesser included offense of the crime of which the defendant has been convicted. The first of these decisions was Bateson v. State, 516 So.2d 280 (Fla. 1st DCA 1987), decided just three years after the seminal decision on ineffective assistance of counsel, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Although Bateson makes no reference to Strickland, we assume that the Bateson panel was aware of the Strickland decision. However, it must be acknowledged that the precise contours of the holding in Strickland are much more clearly defined now than they were just three years after Strickland was decided.

We are confronted in the present case with an issue materially indistinguishable from the issue presented in Bateson, but the knowledge gained from eighteen years of experience in applying Strickland to postconviction ineffective assistance of counsel claims persuades us that Bateson was wrongly decided. We are now convinced that the type of claim involved in Bateson, in Hill, and in the present case cannot satisfy the prejudice prong of Strickland. Our reasons for this conclusion were expressed in Hill as follows:

A valid claim of ineffective assistance of counsel is presented when a defendant shows (1) that the acts or omissions of counsel fell below the standard of reasonably effective assistance, and (2) that there is a "reasonable probability" that, but for counsel's ineffectiveness, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.

* * *

Although the decisional law from the district courts, beginning with the decision in Bateson, indicates that the prejudice prong of the Strickland test may be satisfied in the circumstances presented here, we confess our inability fully to embrace the rationale for these decisions. Strickland indicates that prejudice will exist in conjunction with an ineffective assistance of counsel claim only where it can be said that there is a "reasonable probability" that counsel's deficient performance affected the outcome of the proceeding. But Bateson seems to address the question of prejudice from a very different perspective. It contains no discussion of whether there is a reasonable probability that, given the opportunity, the jury would have declined to follow the law and granted Bateson a jury pardon. Instead, the Bateson court concluded that prejudice could be found because it was "conceivable" that defense counsel's failure to request a jury instruction as to the lesser included offenses had deprived the appellant of the "possibility" of a jury pardon. Subsequent decisions have not articulated any other rationale for a finding of prejudice in these circumstances.

When a trial court improperly denies a defense request for an instruction as to a lesser included offense, the trial court commits error which may be corrected on direct appeal.... But the appellant's motion in the present case was not offered in conjunction with a direct appeal. It was offered in the context of a collateral proceeding. Significantly, the test for prejudicial error in conjunction with a direct appeal is very different from the test for prejudice in conjunction with a collateral claim of ineffective assistance. There are different tests because, once a conviction becomes final, a presumption of finality attaches to the conviction. See Brecht v. Abrahamson, 507 U.S. 619, 633, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)

; Goodwin v. State, 751 So.2d 537, 546 (Fla.1999). Thus, as Goodwin explains, the test for prejudice on direct appeal is the harmless error test of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), under which trial court error will result in reversal unless the prosecution can prove "beyond a reasonable doubt" that the error did not contribute to the verdict obtained. Conversely, however, as explained in Strickland, prejudice may be found in a collateral proceeding in which ineffective assistance of counsel is claimed only upon a showing by the defendant that there is a "reasonable probability" that counsel's deficient performance affected the outcome of the proceeding.

It is entirely reasonable that the Chapman test is not satisfied where a trial court has improperly failed to honor a defense request for an instruction on a lesser included offense. Because we know that jury pardons are occasionally awarded by aberrant juries, it would be difficult for an appellate court to conclude beyond a reasonable doubt that a jury in a particular case, given the opportunity, would not disobey the law and grant a pardon. And if a trial court's refusal to grant a defense request for an instruction as to an applicable lesser included offense were considered harmless upon a finding of guilt as to the greater offense, there would be no remedy for a trial court's failure to comply with the law relating to the giving of instructions for lesser included offenses. A finding of prejudice in the direct appeal context is therefore appropriate both as a proper application of the Chapman test and as a necessary enforcement mechanism.

But these considerations do not apply in the context of a collateral proceeding in which ineffective assistance of counsel is claimed for failure to request an instruction as to a lesser included offense. In this content, there has been no trial court error. And, although it is "conceivable" that a jury in a given case might decline to follow the law and grant a jury pardon, this does not seem to us a reasonable probability. We recognize that a finding of reasonable probability under Strickland does not require a finding that it is more likely than not that the deficient performance of counsel affected the outcome of the proceeding. It requires only a finding that the deficient performance put the whole case in such a different light as to undermine the court's confidence in the outcome of the proceeding. See, e.g., Robinson v. State, 770 So.2d 1167, 1171-73 (Fla.2000)(Anstead, J., specially concurring)

. But we have difficulty accepting the proposition that there is even a substantial possibility that a jury which has found every element of an offense proved beyond a reasonable doubt, would have, given the opportunity, ignored its own findings of fact and the trial court's instructions on the law and found a defendant guilty of only a lesser included offense. In fact, we confess some discomfort with the proposition that members of the judiciary should even engage in such speculation. And we believe our reservations find support in the reasoning employed by the supreme court in Gragg v. State, 429 So.2d 1204 (Fla.1983).

Gragg was charged with aggravated battery by use of a firearm, aggravated assault by use of a firearm, and possession of a firearm by a convicted felon. The possession of a firearm count was severed, and Gragg proceeded to trial on the other two charges. At the conclusion of the evidence, the jury was properly instructed that it could not return a verdict of guilty as charged unless it found that Gragg had used a firearm to commit the offenses. The jury returned verdicts of guilty of the lesser included offenses of simple battery and simple assault. Claiming that the jury's verdicts collaterally estopped the prosecution from asserting that he had possessed a firearm in conjunction with the remaining charge of possession of a firearm by a convicted felon, Gragg moved for, and was granted, a dismissal of that charge.

The supreme court ultimately concluded that the trial court had properly applied the rule of collateral estoppel (a component of the Fifth Amendment guarantee against double jeopardy) in dismissing the possession of a firearm charge. The supreme court noted that where a previous judgment of acquittal was based upon a general verdict, the rule of collateral estoppel requires a court to "examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration." Id. at 1206 (quoting Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25

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