2DCA Reverses on Ineffective Assistance Claim

Marty v. State, 2D15-1218 (Fla. 2d DCA 9/16/2016)

In a rare move, the appellate court found trial counsel ineffective on direct appeal resulting in a new trial for a defendant convicted of aggravated assault.

During an altercation with several neighbors, the defendant grabbed a firearm to defend himself. He aimed the weapon away from the others, but wanted to demonstrate that “he meant business.” He was ultimately charged with aggravated assault with a deadly weapon, and his sole defense was self-defense.

His attorney requested the jury instruction for justifiable use of deadly force, but did not request the instruction for non-deadly force. Notably, the defendant never fired the weapon during the altercation. This is important because aiming, (without firing), a firearm does not constitute deadly force. Thus, the only defense applicable was justifiable use of non-deadly force.

There was no obvious strategic reason for counsel’s request for the deadly force instruction, particularly where such instruction increased the defense burden substantially. Under the chosen instruction, the defendant was required to show that he resorted to deadly force to prevent imminent bodily harm or death, or a forcible felony. Under the correct instruction, non-deadly force, the defendant need only show that he resorted to force to protect himself against any other unlawful use of force. Because this error went to the heart of the defendant’s sole defense, a new trial was required. Though the DCA had the option to reverse this case under the fundamental error standard as primarily presented by appellate counsel, it elected to reverse finding ineffective assistance on the face of the record.

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