Appeal from the Circuit Court for Citrus County, Richard A.
Charles Washer, Cross City, pro se.
Moody, Attorney General, Tallahassee, and Carmen F. Corrente,
Assistant Attorney General, Daytona Beach, for Appellee.
Washer appeals the denial of his motion for postconviction
relief. Washer was convicted of discharging a firearm from a
vehicle, shooting into a dwelling, fleeing and attempting to
elude, and five counts of aggravated assault with a firearm.
This Court affirmed those convictions on appeal. Washer
v. State, 234 So.3d 776 (Fla. 5th DCA 2017).
subsequently moved for postconviction relief, alleging four
grounds of ineffective assistance of trial counsel. The lower
court summarily denied Washers motion. On appeal, this Court
reversed and remanded for an evidentiary hearing on grounds
one and two, in which Washer alleged ineffective assistance
based on counsels failure to: (1) request a self-defense
jury instruction, and (2) investigate and present GPS data
related to his theory of self-defense. Washer v.
State, 252 So.3d 858, 858-59 (Fla. 5th DCA 2018).
Following the evidentiary hearing on grounds one and two, the
lower court denied Washers motion. We reverse and remand for
a new trial on all counts except the fleeing and attempting
to elude charge.
charges against Washer stemmed from a domestic violence
incident involving Washers estranged wife, daughter,
stepson, and stepsons friends. At trial, every witness
except Washer testified that Washer drove to his wifes home
and punctured his stepsons friends car tire with a knife.
Washers stepson confronted Washer outside the home and
struck Washer multiple times with an axe
handle. According to the States witnesses,
Washer drove away from the home but returned shortly
thereafter and fired multiple gunshots into the home.
Washers recitation of events, he denied damaging the
tire or driving away from the home after
being hit with the axe handle. He did not deny firing
gunshots into the home, but instead asserted that he was
assaulted from behind without provocation and discharged the
gun in self-defense.
order to have been successful on his ineffective assistance
of counsel claim, Washer was required to demonstrate
deficient performance by his trial counsel and prejudice as a
result. See Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
evidentiary hearing, related to ground one, Washers counsel
testified that he thought Washer had a "bad"
self-defense case, so he opted to present a diminished
capacity defense instead. Further, counsel testified that he
believed a pure self-defense instruction would not be
available based on the evidence presented. However, on
cross-examination counsel acknowledged that he argued
self-defense during his closing argument. He explained that
he did not ask the trial court for a self-defense jury
instruction because the "instruction for self-defense is
awful." Counsel testified that in his experience,
sometimes the better strategy is to argue to a jury without
the use or benefit of corresponding jury instructions.
lower court denied Washer relief on ground one, finding that
counsel made a strategic decision not to ask for the
self-defense instruction based on the evidence presented at
trial and could not have requested a self-defense jury
instruction in good faith. It ruled that the greater weight
of the evidence showed that counsel could not have argued for