        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                  FOURTH DISTRICT

                             GEORGE ALLISON,
                                Appellant,

                                        v.

                            STATE OF FLORIDA,
                                 Appellee.

                                  No. 4D14-4239

                             [November 18, 2015]

   Appeal of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Michael A. Rothschild,
Judge; L.T. Case No. 06-017966CF10A.

   George Allison, Milton, pro se.

   No brief filed for appellee.

GERBER, J.

    The defendant appeals from the circuit court’s order summarily
denying grounds one, two, and three of his Florida Rule of Criminal
Procedure 3.850 motion for postconviction relief following his convictions
for false imprisonment (as a lesser included offense of kidnapping with a
weapon), attempted robbery (as a lesser included offense of attempted
robbery with a weapon), and conspiracy to commit the substantive
offenses. We affirm without comment the summary denial of grounds two
and three of the defendant’s motion. However, we accept the state’s
concession that the summary denial of ground one requires further review.
Therefore, we reverse on ground one and remand for further proceedings.

   Ground one argued that the trial court had read the “principals” jury
instruction as applying to all three counts. According to the defendant,
his trial counsel was ineffective by failing to object to the standard
“principals” instruction being applied to the conspiracy count. The
defendant argued:
      Counsel should have objected to the giving of the standard
      principal[s] instruction in connection with the criminal
      conspiracy charge on the basis that conduct which aids and
      abets an offense is insufficient as a matter of law to prove
      conspiracy [because] the acts of aiding and abetting cannot,
      without more, also make each actor a principal in the crime
      of conspiracy to commit such offense.

    The defendant argued that his trial counsel’s ineffectiveness prejudiced
him in the jury’s consideration of the conspiracy count. The defendant
points out that, during the jury’s deliberations, the jury asked the
following question:     “[I]f one is guilty of a conspiracy, are they
automatically guilty of the physical actions of another?” When the court
asked the parties to suggest a response to the jury’s question, the state
asked the court to re-read the “principals” instruction. The defendant’s
trial counsel agreed. Based on that agreement, the court re-read the
“principals” instruction to the jury. According to the defendant in his
postconviction motion:

      It is obvious the jury was clearly confused about what
      elements had to be established in order for the Defendant to
      be found guilty of criminal conspiracy, and [that] confusion
      was compounded when the court read the principal[s]
      instruction in connection with the charged count[] regarding
      criminal conspiracy which was not an entirely correct
      statement of law under the circumstances. . . .

      Specific prejudice ensued, in that the giving of the principal[s]
      instruction allowed the jury to find that Defendant was a
      participant of the conspiracy to kidnap and rob [the victim] if
      it concluded that [Defendant] did anything to aid or abet the
      underlying crime.

   The trial court summarily denied ground one as follows: “This alleged
error is an issue which was or could have been raised on direct appeal;
there was no abuse of discretion; therefore, this claim is without merit and
denied.”

   In the defendant’s initial brief to this court, he argues that the trial
court erred in summarily denying ground one for two reasons.




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   First, the defendant argues, contrary to the trial court’s order, he “could
not have raised the issue on direct appeal because trial counsel failed to
object.”

    Second, the defendant argues, he was correct on the merits that his
trial counsel should have objected to giving the standard “principals”
instruction in connection with the conspiracy count. In support of that
argument, the defendant cites Evans v. State, 985 So. 2d 1105 (Fla. 3d
DCA 2007), for the following proposition:

       [E]vidence that a person aided and abetted another in the
       commission of an offense, although sufficient to convict the
       person as a principal in such offense under Section 777.011,
       Florida Statutes (1977), is insufficient to convict either person
       of a conspiracy to commit the subject offense.

Id. at 1106 (quoting Ramirez v. State, 371 So. 2d 1063, 1065 (Fla. 3d DCA
1979)) (footnote and quotation marks omitted).

    In response, the state concedes it is impossible to discern from the
record why the defendant’s trial counsel agreed to giving the “principals”
instruction in connection with the conspiracy count. Therefore, the state
concedes, this court must remand ground one of the defendant’s
postconviction motion to the trial court for an evidentiary hearing or
attachment of portions of the record which conclusively show that the
defendant is entitled to no relief on ground one. See Freeman v. State, 761
So. 2d 1055, 1061 (Fla. 2000) (“[A] defendant is entitled to an evidentiary
hearing on a postconviction relief motion unless (1) the motion, files, and
records in the case conclusively show that the prisoner is entitled to no
relief, or (2) the motion or a particular claim is legally insufficient.”).

   We agree with the state’s response. Based on the foregoing, we reverse
the trial court’s summary denial of ground one of the defendant’s
postconviction motion, and remand ground one to the trial court for an
evidentiary hearing or attachment of portions of the record which
conclusively show that the defendant is entitled to no relief on ground one.

    Reversed and remanded for proceedings consistent with this opinion.1

1   In reaching our decision, we distinguish Rondon v. State, 157 So. 3d 360 (Fla.
4th DCA 2015) (denying the defendant’s petition for habeas corpus relief alleging
ineffective assistance of appellate counsel for not raising on appeal the
unpreserved argument that the trial court erred in giving the principal instruction
in connection with a conspiracy count), and Laws v. State, 149 So. 3d 104 (Fla.

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WARNER and TAYLOR, JJ., concur.

                              *         *         *

   Not final until disposition of timely filed motion for rehearing.




4th DCA 2014) (affirming the defendant’s conspiracy conviction on invited error
grounds where the defendant successfully asked the court to strike “principals”
language from the substantive offense instructions in favor of a “principals”
instruction applying to both the substantive offenses and the conspiracy offense).

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