Opinion
No. 2D00-5238.
Opinion filed May 9, 2001.
Appeal pursuant to Fla.R.App.P. 9.141(b)(2) from the Circuit Court for Lee County; Thomas S. Reese, Judge.
Affirmed in part, Reversed in part, and Remanded.
John W. Childers timely appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Childers' first claim is refuted by the record, and we affirm without discussion. But we reverse and remand for further proceedings on his second claim alleging ineffective assistance of counsel.
In 1996, Childers was convicted of first-degree murder for the 1983 death of his wife. The details of this crime are set out in this court's decision affirming his conviction. Childers v. State, 713 So.2d 431 (Fla. 2d DCA 1998). Childers fled after the crime and was not arrested for over ten years. When he was tried, the statute of limitations had run for the lesser included crimes. The trial court refused to instruct the jury on lesser included offenses unless Childers waived the statute of limitations.
Childers alleged in his second claim that he received ineffective assistance of counsel when his attorney failed to request a jury instruction for second-degree murder with a weapon. Based on the use of a weapon, this first-degree felony would have been reclassified as a life felony, which was not barred by the statute of limitations. See State v. Trejo, 555 So.2d 1321 (Fla. 2d DCA 1990). In denying relief, the trial court found that the instruction would not have been allowed because the indictment failed to charge the use of a weapon or firearm. The trial court also found that the instruction was inconsistent with Childers' testimony, where he denied inflicting any injuries on the victim.
The indictment charged that Childers committed premeditated murder "by inflicting wounds and injuries upon her with his hands or another object." (Emphasis added.) The evidence showed that a hammer was used to strike blows to the victim's head. Thus, the allegation of the charging document and the evidence at trial supported a jury instruction for second-degree murder with a weapon. See § 775.087, Fla. Stat. (1983). See also Rogan v. State, 203 So.2d 24 (Fla. 3d DCA 1967) (noting that nature of object used may present factual question as to whether it was a weapon). Therefore, the trial court erred by concluding that the instruction on this charge was not legally allowable.
The trial court also erred in denying the claim by finding that the charge was inconsistent with Childers' testimony. A defendant is entitled to have the jury instructed on any theory of defense supported by the evidence. See Wenzel v. State, 459 So.2d 1086 (Fla. 2d DCA 1984). Therefore, we reverse the summary denial of this claim.
On remand, unless the record conclusively refutes this claim, the trial court should conduct an evidentiary hearing, which may reveal that counsel made a reasoned tactical decision. See Dauer v. State, 570 So.2d 314 (Fla. 2d DCA 1990). See also Strickland v. Washington, 466 U.S. 668, 689 (1984) ("[T]he defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound strategy.") (citation and internal punctuation omitted). If Childers can show that counsel erred in failing to ask for the instruction, "he would also have the burden of establishing that the shortcoming fell below an objective standard of reasonableness. He would likewise be required to show that there is a reasonable probability that, but for the error, the result of the proceeding would have been different." Fierstos v. State, 658 So.2d 1117, 1118 (Fla. 2d DCA 1995) (citing Strickland, 466 U.S. at 688).
Blue, A.C.J., and Green, J., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.