Redding v. StateRedding v. State
Terald Redding seeks review of the postconviction court’s order summarily denying his motion for postconvietion relief filed in accordance with Florida Rule of Criminal Procedure 3.850. We affirm without comment the postconviction court’s order on all of the claims asserted except claim three. With regard to the postconviction court’s summary denial of Mr. Redding’s third claim — ineffective assistance of counsel for failing to object to the forcible-felony exception to the jury instruction on self-defense — we reverse and remand for further proceedings.
In November 2007, Mr. Redding was convicted by a jury of attempted second-degree murder. Mr. Redding was sentenced to fifty years’ imprisonment as a habitual felony offender (HFO) with thirty years as a prison release reoffender (PRR). The judgment and sentence were affirmed on direct appeal.
Redding v. State,
In claim three of his motion, Mr. Red-ding claimed that his trial counsel was ineffective for failing to object to the giving of the forcible-felony exception to self-defense when he was only charged with one offense. He contended that the instruction negated his theory of self-defense because he was not engaged in an independent forcible felony. Mr. Redding alleged that if counsel had objected, there is a strong probability that the outcome of the trial would have been different.
The forcible-felony exception provides that self-defense is not available as a justification if the defendant “[i]s attempting to commit, committing, or escaping after the commission of, a forcible felony.” § 776.041, Fla. Stat. (2009). An instruction on the forcible-felony exception should not be given “unless the defendant is charged with an independent forcible felony, in addition to the offense
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for which he claims self-defense.”
Wilson v. State,
In its order denying Mr. Redding’s claim, the postconviction court simply adopted the State’s response. Although the State attached portions of the trial transcript to its response, the record does not conclusively refute Mr. Redding’s facially sufficient claim of ineffective assistance of counsel. In its response, the State concedes that the trial court erred in reading the forcible-felony instruction to the jury. But the State asserts that it was a reasonable trial strategy for counsel to fail to object to the instruction “because she incorporated it into her closing [argument] and used it as justification for her client’s actions.” We disagree.
Because the reading of the forcible-felony exception in the absence of an independent forcible felony negates a defendant’s claim of self-defense, it is not a reasonable trial tactic or strategy to fail to object to the erroneous reading of the instruction.
Sipple v. State,
Accordingly, we reverse the denial of Mr. Redding’s claim that counsel was ineffective for failing to object to the forcible-felony instruction and remand for the post-conviction court either to attach specific portions of the record refuting Mr. Red-ding’s allegations in claim three or to conduct an evidentiary hearing. In all other respects, we affirm the postconviction court’s order.
Affirmed in part, reversed in part, and remanded.