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Robbins v. State

Florida Court of Appeals, Fourth District

July 11, 2018

MICHAEL ROBBINS, Petitioner,
v.
STATE OF FLORIDA, Respondent.

         Not final until disposition of timely filed motion for rehearing.

          Petition alleging ineffective assistance of appellate counsel to the Seventeenth Judicial Circuit, Broward County; Edward H. Merrigan, Judge; L.T. Case No. 12016631CF10A.

          Robert Malove, Fort Lauderdale, for petitioner.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for respondent.

          GERBER, C. JUDGE

         The defendant, pursuant to Florida Rule of Appellate Procedure 9.141(d), petitions that he received ineffective assistance of appellate counsel on his direct appeal, primarily because the direct appeal did not argue that the trial court applied the incorrect legal standard in denying the defendant's motion for new trial. We grant the petition on this ground only. We remand for the trial court to reconsider the defendant's motion for new trial under the correct legal standard.

         We present this opinion in the following five sections:

1. The procedural history;
2. The standard of review for a petition alleging ineffective assistance of appellate counsel;
3. Review of the incorrect legal standard argument;
4. Review of the instant case and similar precedent; and
5. Distinguishing the instant case from recent precedent.

         1. Procedural History

         The state charged the defendant with aggravated battery with a firearm. The evidence showed that the defendant was involved in an argument with a man who was hanging out with a small group of people outside of a business. The defendant eventually got a gun from his nearby truck, fired two shots towards the group, and drove off. One of the shots struck a woman in the group.

         Defendant claimed that he fired warning shots in self-defense and did not intend to hit anyone. At trial, defense counsel cross-examined the woman about her inconsistent statements regarding whether it appeared to her that the defendant was trying to shoot towards the group or was just trying to scare someone off.

         After the jury convicted the defendant as charged, defense counsel moved for a new trial, arguing in part that, pursuant to Florida Rule of Criminal Procedure 3.600(a)(2), the verdict was contrary to the weight of the evidence. Defense counsel reminded the court about the woman's inconsistent statements ...


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