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Washer v. State

Florida Court of Appeals, Fifth District

November 15, 2019

Wayne Charles WASHER, Appellant,
v.
STATE of Florida, Appellee.

Page 1140

          3.850 Appeal from the Circuit Court for Citrus County, Richard A. Howard, Judge.

          Wayne Charles Washer, Cross City, pro se.

         Ashley Moody, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.

         OPINION

         COHEN, J.

         Wayne 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.

Page 1141

This Court affirmed those convictions on appeal. Washer v. State, 234 So.3d 776 (Fla. 5th DCA 2017).

         Washer subsequently moved for postconviction relief, alleging four grounds of ineffective assistance of trial counsel. The lower court summarily denied Washer’s 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 counsel’s 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 Washer’s motion. We reverse and remand for a new trial on all counts except the fleeing and attempting to elude charge.

         The charges against Washer stemmed from a domestic violence incident involving Washer’s estranged wife, daughter, stepson, and stepson’s friends. At trial, every witness except Washer testified that Washer drove to his wife’s home and punctured his stepson’s friend’s car tire with a knife. Washer’s stepson confronted Washer outside the home and struck Washer multiple times with an axe handle.[1] According to the State’s witnesses, Washer drove away from the home but returned shortly thereafter and fired multiple gunshots into the home.

         In Washer’s recitation of events, he denied damaging the tire[2] 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.

         In 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).

          At the evidentiary hearing, related to ground one, Washer’s 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.

         The 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 ...


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