137 So. 3d 446
Fla. Dist. Ct. App.2014Background
- In consolidated cases, the defendant appeals probation revocation based on new convictions and his conviction on those charges.
- While on probation, the State charged the defendant with resisting an officer with violence, battery on a law enforcement officer, possession of burglary tools, and two counts of attempted burglary of a conveyance; the probation officer filed affidavits of violation.
- During pursuit, a canine officer alerted to the defendant; the defendant fled, was bitten by the canine, and then fought the officers despite commands to surrender.
- Defense claimed the defendant’s actions were involuntary due to dog bite pain or in self-defense; a judgment of acquittal on that basis was denied at trial.
- Defense requested a jury instruction on justifiable use of non-deadly force; the State objected; the court indicated the instruction would imply admission of striking the officer and discussed self-defense.
- The defendant ultimately withdrew the request for the self-defense instruction; the jury convicted on resisting an officer with violence and battery on a law enforcement officer, acquitting other charges; probation violation and sentence followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether withdrawal of the non-deadly force instruction was ineffective. | Defendant contends counsel erred by withdrawing the instruction. | State argues withdrawal was proper since instruction implied admission and lacked basis. | No ineffective assistance; instruction unwarranted |
| Whether the justifiable non-deadly force instruction was warranted. | Defendant argues evidence supported alternate defenses necessitating instruction. | State contends no instruction needed absent evidence of excessive force. | Instruction unwarranted; no excessive force shown |
Key Cases Cited
- Maxwell v. Wainwright, 490 So.2d 927 (Fla. 1986) (two-part Strickland standard for ineffective assistance)
- Strickland v. Washington, 466 U.S. 668 (1984) (ineffective assistance framework)
- Aversano v. State, 966 So.2d 493 (Fla. 4th DCA 2007) (ineffective-assistance review on direct appeal when obvious on record)
- McMullen v. State, 876 So.2d 589 (Fla. 5th DCA 2004) (direct-appeal limits on counsel ineffectiveness claims)
- Caldwell v. State, 803 So.2d 839 (Fla. 2d DCA 2001) (justifiable use of nondeadly force requires excessive-force evidence)
- Wright v. State, 705 So.2d 102 (Fla. 4th DCA 1998) (distinguishes need for instruction when excessive force not shown)
- Keyes v. State, 804 So.2d 378 (Fla. 4th DCA 2001) (admission requirement for self-defense instruction)