Thames v. State
230 So. 3d 566
| Fla. Dist. Ct. App. | 2017Background
- Thames was charged with sale of cannabis, possession of a conveyance used for trafficking (§ 893.1351(2)), and solicitation; jury acquitted on two counts and convicted on the conveyance count.
- The court sentenced Thames to 15 years as a habitual violent felony offender; the conviction and sentence were affirmed on direct appeal (table opinion).
- At trial, undercover officers filmed a marijuana sale beside a Chevrolet Caprice; Thames stood by or leaned on the car and provided his phone number; evidence suggested Thames likely owned the Caprice.
- Jury instructions for the conveyance offense omitted the word “knowingly” from the first element (i.e., that the defendant must knowingly be in possession of the conveyance).
- Thames’s trial counsel stipulated to the jury instructions and did not object; Thames later petitioned under Fla. R. App. P. 9.141(d) claiming appellate counsel was ineffective for not raising the omitted-knowledge-element instruction on direct appeal.
- The Second District majority held the omission was error but not fundamental on these facts because the record did not show the knowing-possession element was disputed at trial, so appellate counsel’s failure to raise it was not ineffective.
Issues
| Issue | Plaintiff's Argument (Thames) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether omission of “knowingly” from the possession element in the jury instruction constituted fundamental error | Instruction lacked required knowledge element under § 893.1351(2); omission is fundamental error that can be raised despite no contemporaneous objection | Although omission was erroneous, the mental-element of knowing possession was never disputed at trial, so the error did not reach the level of fundamental error | Omission was error but not fundamental on these facts because knowing-possession was not contested at trial |
| Whether appellate counsel was ineffective for not raising the omitted-element issue on direct appeal | Failure to raise fundamental error on appeal was deficient and prejudicial under Rutherford/Strickland standards | If the issue was not fundamental, appellate counsel was not ineffective because raising a meritless/forfeited issue does not constitute deficient performance | Appellate counsel was not ineffective because the omitted-element error was not fundamental and thus would have been meritless on appeal |
Key Cases Cited
- Rutherford v. Moore, 774 So.2d 637 (Fla. 2000) (standards for ineffective assistance of appellate counsel)
- Duest v. Dugger, 555 So.2d 849 (Fla. 1990) (appellate counsel not ineffective for failing to argue harmless errors)
- Poole v. State, 997 So.2d 382 (Fla. 2008) (definition of fundamental error as error reaching validity of trial)
- Delva v. State, 575 So.2d 643 (Fla. 1991) (jury instruction issues subject to contemporaneous objection rule; absent objection, only fundamental error review)
- Montgomery v. State, 39 So.3d 252 (Fla. 2010) (failure to instruct on undisputed element is not fundamental error)
- Reed v. State, 837 So.2d 366 (Fla. 2002) (element omission is fundamental only if disputed and material to conviction)
- Nash v. State, 951 So.2d 1003 (Fla. 4th DCA 2007) (omission of “knowingly” was fundamental where knowledge of contraband was hotly disputed)
- Thompson v. State, 759 So.2d 650 (Fla. 2000) (quoted by Rutherford for prejudice inquiry)
- Groover v. Singletary, 656 So.2d 424 (Fla. 1995) (similar ineffective-appellate-counsel principles)