       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                        RONNIE TRAVIS KRUSE,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D16-1422

                              [July 12, 2017]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Elizabeth A. Metzger, Judge; L.T. Case No. 562015CF
001201A.

  Carey Haughwout, Public Defender, and Richard B. Greene, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

                        ON MOTION FOR REHEARING

KLINGENSMITH, J.

   We grant in part the appellee’s motion for rehearing to clarify the charge
to be tried on remand. We substitute the following opinion for the original
opinion which we issued on May 31, 2017. We deny the remainder of
appellee’s motion for rehearing without further comment.

   Appellant Ronnie Travis Kruse was charged with felony battery on an
elderly person (over the age of sixty-five) with prior conviction, and was
convicted of the lesser included offense of felony battery with prior
conviction. He argues that his counsel was ineffective for failing to request
a self-defense jury instruction. We agree, and reverse his conviction and
remand the case for a new trial.

   In May 2015, appellant had an altercation with the victim outside of
the victim’s home. According to the victim, appellant came from across
the street and started screaming at him, accusing him of either selling or
giving drugs to a present third person. The victim claimed that appellant
grabbed him, threw him into the bushes, and broke his jaw by hitting him
in the face.

    Victim did not contact legal authorities about the incident, but they
came to him two days later after appellant called a detective whom he knew
to inform him that he had hit the victim during the altercation. According
to the third party, appellant put his finger near victim’s face, causing
victim to initiate physical contact by swiping appellant’s finger away.

   At trial, appellant described what happened as follows:

         [APPELLANT]: [Victim] grabbed my hand, this, my right
      hand, so I physically with my left hand grabbed his shirt, he
      grabbed this part of my arm, we ended up in a shoving match
      almost. He was trying to push me, I, I guess out of the yard or
      into the bush cause we stumbled into a hedge.

         [DEFENSE COUNSEL]: And what did you do after that?

         [APPELLANT]: I kinda panicked cause I didn’t know what
      he was gonna do, I apparently hit him twice, I wasn’t even
      sure cause I didn’t even think about it, it was, it just, ya’ know
      I guess when . . .

         [DEFENSE COUNSEL]: (INDISCERNIBLE) . . .

        [APPELLANT]: When fear takes over you fight for your life
      and I . . .

         [DEFENSE COUNSEL]: Did any, did anything, did you, did
      you do anything else after that?

         [APPELLANT]: No, I pushed him away, I looked at [the third
      party] . . .

         [DEFENSE COUNSEL]: Did you . . .

         [APPELLANT]: I say get outta here and we left.

         [DEFENSE COUNSEL]: Okay.



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         [APPELLANT]: I just tried to get away from him.

         [DEFENSE COUNSEL]: And then you left?

         [APPELLANT]: Yes ma’am.

   On cross-examination, appellant said he feared the victim was going to
harm him even though the victim was sixty-five and somewhat feeble. He
stated that he only meant to get the victim off of him, not to “beat that man
up,” and maintained that he was “not guilty of anything but defending
myself.”

   During closing argument, defense counsel at times made points
seemingly related to self-defense. She began her argument by stating, “[a]ll
right, the question is what happened on May 3rd, 2015? Who came at
who, what happened?” She asserted that the victim “escalated” the
situation, and that the testimonies established the victim as the first
person to make physical contact when he slapped away appellant’s hand.
She described the altercation as “a mutual fight between [the victim] and
[appellant].”

   Notably, during the State’s rebuttal argument as the prosecutor
contended that there was no justification for what appellant did, appellant
interrupted and blurted out, “[i]t’s called self-defense.”

   Despite the testimonies and defense counsel’s arguments, defense
counsel did not request for the jury to be instructed on self-defense. Later,
the jury asked the court, “[i]s affirmative defense applicable in this case?”
Defense counsel agreed with the court to answer, “[y]ou were not
instructed on an affirmative defense.”

   The question presented is whether this court should find on direct
appeal that appellant’s trial counsel was ineffective for not requesting a
jury instruction on self-defense.      “An attorney renders ineffective
assistance of counsel through conduct that exceeds the bounds of
reasonable professional assistance, without which, there is a reasonable
probability that the client would have enjoyed a different result.” Monroe
v. State, 191 So. 3d 395, 403 (Fla. 2016). As such, “[a]n ineffective
assistance of counsel claim is a mixed question of law and fact and is
therefore subject to de novo review.” Jones v. State, 137 So. 3d 446, 449
(Fla. 4th DCA 2014) (quoting Bowman v. State, 748 So. 2d 1082, 1083–84
(Fla. 4th DCA 2000)).



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    “[I]neffective assistance of counsel claims should rarely be raised on
direct appeal because they are generally fact-specific,” Michel v. State, 989
So. 2d 679, 681 (Fla. 4th DCA 2008), and as a result, appellate courts do
not usually address such claims “until a defendant seeks postconviction
relief because such courts are limited to reviewing the record directly
before them.” Monroe, 191 So. 3d at 403. “However, such a claim can be
raised where the face of the record demonstrates ineffective assistance of
counsel.” Michel, 989 So. 2d at 681; see also Jones, 137 So. 3d at 449
(“Such claims are usually reserved for post-conviction relief, and can be
addressed on direct appeal only ‘where the incompetence and
ineffectiveness of counsel is apparent on the face of the record and
prejudice to the defendant is obvious.’” (quoting Aversano v. State, 966 So.
2d 493, 495 (Fla. 4th DCA 2007))). We find that relief on direct appeal is
warranted because the record before us demonstrates that appellant’s
counsel rendered ineffective assistance at trial.

  To establish an ineffective assistance of counsel claim, two elements
must be met:

      First, the claimant must identify particular acts or omissions
      of the lawyer that are shown to be outside the broad range of
      reasonably competent performance under prevailing
      professional standards. Second, the clear, substantial
      deficiency shown must further be demonstrated to have so
      affected the fairness and reliability of the proceeding that
      confidence in the outcome is undermined.

Jones, 137 So. 3d at 449 (quoting Maxwell v. Wainwright, 490 So. 2d 927,
932 (Fla. 1986) (citing Strickland v. Washington, 466 U.S. 668, 690
(1984))); see also Capiro v. State, 97 So. 3d 298, 300 (Fla. 4th DCA 2012)
(describing the two elements as “1) counsel’s performance was deficient to
the point that counsel was not functioning as the ‘counsel’ guaranteed by
the Sixth Amendment, and 2) the deficient performance prejudiced the
defense”).

    As to the first element, the record shows that appellant’s counsel never
requested any instruction on the justifiable use of force despite the
evidence supporting a self-defense claim.         Defense counsel elicited
testimony from appellant asserting that the victim was the aggressor who
first made physical contact and “tried to push” appellant out of the yard.
Defense counsel also elicited from the third-party witness that the victim
was the first to make physical contact, and made arguments during
closing that could have reasonably comported with a theory of self-defense.


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   As to the second element, the jury’s question asking if any affirmative
defenses were available indicates the reasonable possibility that they
might have found appellant acted in self-defense.            In fact, during
deliberations the jury also asked the court whether it could give them
“documentation or proof of [the victim’s] age” despite there being no real
contest that the victim was over the age of sixty-five; then, after the court
refused the request, the jury ultimately did not find appellant guilty of
battery against an elderly person. Therefore, it is fair to conclude that the
jury would have seriously considered the possibility that appellant acted
in self-defense if that option were available under the instructions.

    We recognize that “[c]ounsel cannot be deemed ineffective merely
because current counsel disagrees with trial counsel’s strategic decisions.”
Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000). “Moreover, strategic
decisions do not constitute ineffective assistance of counsel if alternative
courses have been considered and rejected and counsel’s decision was
reasonable under the norms of professional conduct.” Id. However, we
are hard pressed to surmise what possible strategic reason counsel had to
not request a self-defense jury instruction when both counsel and
appellant focused on the fact that victim was the first person to initiate
physical contact. The State postulates that perhaps appellant’s counsel
decided not to request a self-defense jury instruction based on the
assumption that the jury would not believe that appellant (who was forty-
five years old at the time of the incident) acted in self-defense against a
feeble sixty-five-year-old man by punching him in the face and breaking
his jaw. Indeed, such an assumption on the part of appellant’s counsel
may have been reasonable. Nevertheless, given the evidence adduced at
trial and counsel’s statements in closing, that counsel neither requested
such an instruction nor objected to its omission is inexplicable.

    In sum, self-defense was appellant’s only proffered defense to the
battery charge. By neglecting to request a self-defense instruction that
was clearly applicable to the facts and circumstances of the case,
appellant’s trial counsel was constitutionally ineffective. Clearly there is a
reasonable probability that the error by appellant’s trial counsel was
prejudicial. See Marty v. State, 210 So. 3d 121, 127 (Fla. 2d DCA 2016).
Although claims of ineffective assistance of counsel are usually reserved
for post-conviction relief under rule 3.850, here the ineffectiveness of
counsel is “apparent on the face of the record and it would be a waste of
judicial resources to require the trial court to address the issue.” McComb
v. State, 174 So. 3d 1111, 1113 (Fla. 2d DCA 2015) (quoting Forget v. State,
782 So. 2d 410, 413 (Fla. 2d DCA 2001)); see also Monroe, 191 So. 3d at


                                      5
403; Jones, 137 So. 3d at 449. Accordingly, we reverse appellant’s
conviction and remand for a new trial on the charge of felony battery with
prior conviction. See Middleton v. State, 131 So. 3d 815, 817–18 (Fla. 1st
DCA 2014) (stating that for double jeopardy purposes, a jury verdict
convicting a defendant of a lesser included offense impliedly acquits the
defendant of the greater offense).

   Reversed and Remanded.

GERBER, C.J., and DAMOORGIAN, J., concur.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




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