08-0802 EDDIE RILEY, v. STATE OF FLORIDA

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State: Florida

Court: Florida First District Court

Docket No: 08-0802

Case Date: 10/22/2008

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA EDDIE RILEY, Petitioner, v. STATE OF FLORIDA, Respondent. ______________________________/ Opinion filed October 22, 2008. Petition Alleging Ineffective Assistance of Appellate Counsel -- Original Jurisdiction. Eddie Riley, pro se, Petitioner. Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED. CASE NO. 1D08-0802

PER CURIAM. Eddie Riley presents a timely claim of ineffective assistance of appellate counsel. We find no merit to petitioner's assertion that appellate counsel should have presented an argument that the trial court erred in denying his motion to suppress

statements made to the police. We conclude, however, that appellate counsel was ineffective for failing to raise an issue of reversible error in the jury instructions.1 A large portion of our analysis is predicated upon the supreme court's holding in State v. Abreau, 363 So. 2d 1063 (Fla. 1978), that the court's failure to instruct on an offense one step removed from the charged offense constitutes per se reversible error. In light of recent supreme court precedent, however, it is unclear whether the reasoning behind this precedent is still valid. We, therefore, also certify a question of great public importance concerning the continuing validity of the holding in Abreau.

Riley was charged in Count I of an amended information with capital sexual battery committed between November 1, 2002, and May 1, 2003, in violation of section 794.011(2)(a), Florida Statutes. The matter proceeded to trial, and as to Count I, defense counsel requested that the jury be instructed on simple battery as a lesser included offense. The trial court denied that request, opining that simple battery was not a lesser included offense because it requires a touching against the will of the

Riley's counsel on direct appeal filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). The fact that Riley could have raised the jury instruction issue in a pro se brief does not foreclose him from now seeking relief on a claim of ineffective assistance of appellate counsel. See Jackson v. State, 946 So. 2d 83 (Fla. 4th DCA 2006); Barber v. State, 918 So. 2d 1013 (Fla. 2d DCA 2006). Likewise, the fact that the court could have identified the error at issue in the course of its independent Anders review does not preclude his present claim. 2

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victim, whereas sexual battery committed on a victim under 12 does not require a lack of consent, nor was lack of consent alleged in the amended information. As a consequence, the jury was instructed only on the charged offense and attempted capital sexual battery, and returned a verdict finding petitioner guilty as charged on Count I. As the state now concedes, the trial court's reasoning in denying the request for an instruction on battery was erroneous. See Khianthalat v. State, 935 So. 2d 583 (Fla. 2d DCA 2006), approved, 974 So. 2d 359 (Fla. 2008) (in a prosecution for sexual battery on a child under 12, lack of consent is always an element because of the conclusive presumption that a child that age cannot consent, and thus the offense always includes simple battery as a necessarily included offense); see also Caulder v. State, 500 So. 2d 1362 (Fla. 5th DCA 1986) (simple battery is a necessarily lesser included offense of capital sexual battery). Because simple battery was a necessarily lesser included offense, the trial court had no discretion but to grant defense counsel's request. See State v. Wimberly, 498 So. 2d 929 (Fla. 1986); King v. State, 911 So. 2d 857 (Fla. 1st DCA 2005). The failure to give a requested instruction on a lesser included offense only one step removed from the offense charged is per se reversible error, not subject to a harmless error analysis. See State v. Abreau, 363 So. 2d at 1063; Johnson v. State, 695 So. 2d 787 (Fla. 1st DCA 1997). 3

While acknowledging the trial court erred in denying the requested instruction, the state relies on authorities recognizing that the failure to instruct on a lesser included offense two steps or more removed from the offense for which the defendant is convicted is harmless error. Abreau, 363 So. 2d at 1063; Crespo v. State, 647 So. 2d 295 (Fla. 3d DCA 1994). According to the state, these authorities dictate that the error here was harmless and appellate counsel cannot be faulted for failing to raise it because lewd or lascivious molestation of a child under 12, a violation of section 800.04(5)(b), is the next-step removed lesser included offense of capital sexual battery. Thus, the state reasons that simple battery, a misdemeanor, is more than onestep removed from capital sexual battery and any error in failing to instruct the jury on simple battery was harmless. We find no merit to this contention. Lewd or lascivious molestation is not a necessarily lesser included offense of capital sexual battery, and under the law as it existed prior to the 1999 amendment to section 800.04, it likewise was not a permissive lesser included offense of any form of sexual battery. See Welsh v. State, 850 So. 2d 467 (Fla. 2003). For post-1999 offenses, lewd or lascivious battery of a child between 12 and 15 under section 800.04(4) may be a permissive lesser included offense of sexual battery. See

Williams v. State, 957 So. 2d 595 (Fla. 2007). However, unlike lewd or lascivious battery of a child between 12 and 15, lewd or lascivious molestation of a child under 4

12 requires that the touching be "in a lewd or lascivious manner." See

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