Critton v. State

Feb 13, 1996

No. 95-2646

Versions:668 So. 2d 242

1996 WL 60794

1996 Fla. App. LEXIS 1010

PER CURIAM.

We reverse the summary denial of appellant’s motion for posteonviction relief concerning his claim of ineffective assistance of counsel based on counsel’s alleged failure to object to the absence of jury instructions for simple assault and simple battery.

Appellant was charged with aggravated assault and aggravated battery. Simple assault and simple battery are necessarily lesser included offenses to the aggravated charges. Fla.Std.Jury Instr. (Crim.) 287-88. Failure to instruct on the necessarily lesser included crimes, when requested, is reversible error. Wheat v. State, 433 So.2d 1290 (Fla. 1st DCA 1983), review denied, 444 So.2d 418 (Fla.1984); Foster v. State, 448 So.2d 1239 (Fla. 5th DCA 1984). Appellant’s motion is facially sufficient as to this claim, because it sets forth the alleged deficient act and asserts prejudice due to the fact that the jury was deprived of its pardoning power. The trial court is therefore directed on re*243mand either to attach a copy of that portion of the record which conclusively shows that appellant is not entitled to relief or to hold an evidentiary hearing on the claim.

We affirm the summary denial of the motion as to the remainder of appellant’s claims.

AFFIRMED in part, REVERSED in part and REMANDED for further proceedings.

ERVIN, WEBSTER and MICKLE, JJ., concur.