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Appellate Court Finds Ineffective Assistance on the Face of the Record

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

“The display of a deadly weapon, without more, is not deadly force.”

gun-pointed-awayCriminal attorneys who have attempted to overturn convictions in state court based on ineffective assistance of trial counsel know that an evidentiary hearing under Florida Rule of Criminal Procedure 3.850 is almost always necessary for a defendant to prevail. This is because the content of private conversations between the client and the attorney is often at the crux of the complaint – for example, the defendant claims to have told the attorney about a witness who would have exonerated him but the attorney didn’t follow up on it. The conversation between the defendant and the attorney does not, of course, appear in the trial record.

On rare occasions, however, the attorney’s ineffectiveness may be apparent from the face of the record and may be raised on direct appeal. This is what happened in Marty v. State in the Second District. Defendant Stephen Marty was convicted of aggravated assault with a deadly weapon and sentenced to three years of mandatory imprisonment. On appeal, Marty argued that his counsel was ineffective for requesting a jury instruction on the justifiable use of deadly force instead of requesting an instruction on the justifiable use of non-deadly force.

The Second District held that an instruction on the justifiable use of non-deadly force was the only self-defense instruction that applied to the undisputed facts of the case. Marty had been involved in a verbal altercation with an irate neighbor who parked her car on his lawn, got out of her car, and quickly approached him with both fists raised. When the neighbor got within stabbing distance, Marty told her that he had a gun and showed her the butt of the gun with the barrel pointed away. Marty then told her to leave the area, and she obeyed.

Marty was charged with aggravated assault with a deadly weapon, and his attorney asked for the jury instruction on justifiable use of deadly force. But the use of deadly force is justifiable only when a person reasonably believes that deadly force is necessary to prevent imminent death or great bodily harm. The facts do not suggest that the neighbor’s raised fists posed such a threat.

The instruction for justifiable use of non-deadly force, on the other hand, states that such force is justified when the defendant reasonably believes that it is necessary to defend himself or others against imminent use of unlawful force. A defendant has no duty to retreat when the alleged victim is trespassing on his land, as the neighbor was doing in this case.

The Second District held that Marty’s pointing a gun at his neighbor without firing at her did not, as a matter of law, constitute deadly force. As the court stated, “the display of a deadly weapon, without more, is not ‘deadly force.’”

Because the justifiable use of deadly force instruction did not apply where it was undisputed that Marty did not fire his gun, and as this defense is much more difficult to prove than the justifiable use of non-deadly force, the appellate court found that it could “glean no strategic reason for Marty’s counsel to request a jury instruction that made it more difficult for Marty to prove that he acted in self-defense.”

At trial, the state had argued in closing that Marty had not acted in self-defense because he was not in fear of imminent death or great bodily harm. The Second District found that the state could not have made this argument if the proper self-defense instruction had been given, and therefore Marty was prejudiced by the improper instruction. The court reversed the conviction and remanded for a new trial.

My take: The state should save the taxpayers some money and drop the charges. But at the least, with the proper instruction, Marty should be acquitted at a new trial. He deserves credit for not using deadly force when the threat from the neighbor didn’t justify it.


Update: On June 11, I reported in this newsletter on Peterson v. State, a Fifth DCA case rejecting a 56-year sentence without parole for a juvenile. The Fourth DCA has recently weighed in on juvenile sentencing in Davis v. State by affirming a 75-year juvenile sentence where the record shows that, because of gain-time (time off for good behavior), the defendant is expected to be released in his mid-fifties. The Fourth DCA certified conflict with Peterson and also certified no less than four questions of great public importance, including whether gain-time should be considered in determining whether a juvenile sentence is cruel and unusual punishment. The Florida Supreme Court is going to have its hands full in sorting out the law of juvenile sentencing.

–Tom Regnier, September 19, 2016

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Tom Regnier Appeals, P.A.

tom@tomregnierappeals.com | 786-319-4810
1580 Sawgrass Corporate Parkway, Suite 130
Sunrise, FL 33323

Florida Bar Number: 660000