       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                             JAMIE GRANT,
                               Petitioner,

                                     v.

                          STATE OF FLORIDA,
                             Respondent.

                              No. 4D15-1590

                           [February 24, 2016]

   Petition alleging ineffective assistance of counsel to the Circuit Court
for the Nineteenth Judicial Circuit, Indian River County; Cynthia Cox,
Judge; L.T. Case No. 2010CF1637A.

   Jamie Grant, Crawfordville, pro se.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L.
Bettendorf, Assistant Attorney General, West Palm Beach, for respondent.

WARNER, J.

    Jamie Grant petitions for habeas corpus relief on the grounds of
ineffective assistance of appellate counsel (“IAAC”). We grant his petition,
concluding that counsel was ineffective in failing to raise on direct appeal
the trial court’s error in denying his request for a jury instruction on a
necessarily lesser-included offense to the main charge. As this constitutes
a per se reversible error on direct appeal and a new appeal would be
redundant, we vacate his conviction and sentence and remand for a new
trial.

   Grant was convicted in the Nineteenth Judicial Circuit of attempted
armed robbery while carrying a firearm and wearing a mask, and
possession of a firearm with an altered serial number. On the attempted
armed robbery count, he was sentenced to fifteen years in prison with a
ten-year mandatory minimum because he was carrying a firearm. See §
775.087(2), Fla. Stat. (2010). On the possession of a firearm count, he
received time served. On appeal, this Court affirmed the convictions, but
reversed the mandatory minimum sentence and remanded for
resentencing. Grant v. State, 138 So. 3d 1079, 1085-87 (Fla. 4th DCA
2014) (holding the jury’s finding that Grant “carried a firearm” while
committing the attempted robbery was insufficient to support the
mandatory minimum on the basis of constructive possession).

   Grant filed a petition for IAAC, contending that his appellate counsel
was ineffective in failing to argue reversible error in the trial court’s: (1)
denial of his motion to suppress and (2) refusal to instruct the jury on the
lesser-included offense of attempted armed robbery with a weapon, as
requested by counsel.       We reject the first ground without further
discussion but grant relief on the second ground.

   To demonstrate a claim of IAAC, petitioner must show that his appellate
counsel’s performance was not only deficient, but also that it so prejudiced
the petitioner as to undermine confidence in the result of the appeal.
Rutherford v. Moore, 774 So. 2d 637, 643 (Fla. 2000).

   The Florida Supreme Court held in State v. Abreau, 363 So. 2d 1063
(Fla. 1978), that a trial court’s failure to instruct on the next immediate
lesser-included offense, one step removed from the offense of conviction,
constitutes per se reversible error. Id. at 1064. Therefore, the appellate
court does not conduct a harmless error analysis, because to do so would
engage in speculation as to the effect of properly instructing the jury on
the ultimate verdict. Id. The court further explained in Johnson v. State,
53 So. 3d 1003 (Fla. 2010):

          Another circumstance in which this Court has held that an
      error is per se reversible because the reviewing court cannot
      conduct a harmless error analysis is when a jury is not
      instructed on a lesser-included offense one step removed from
      the charged offense. In such a situation, the reviewing court
      cannot determine the effect of the error on the jury because
      the court cannot know whether the jury would have convicted
      the defendant of the next lesser included offense if the jury
      had been given the option. As explained by this Court: “If the
      jury is not properly instructed on the next lower crime, then
      it is impossible to determine whether, having been properly
      instructed, it would have found the defendant guilty of the
      next lesser offense.” Pena v. State, 901 So. 2d 781, 787 (Fla.
      2005) (citing State v. Abreau, 363 So. 2d 1063 (Fla. 1978)). To
      conduct a harmless error analysis in that situation would be
      to engage in pure speculation.

Id. at 1008. Thus, the failure to raise on appeal the denial of a properly
preserved meritorious request for an instruction on a lesser-included

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offense would constitute deficient performance which substantially
undermines the appellate process, because, if correct, the matter would
require reversal for a new trial.

   “Necessarily lesser included offenses are those where ‘the burden of
proof of the major crime cannot be discharged, without proving the lesser
crime as an essential link in the chain of evidence.’” Miller v. State, 870
So. 2d 15, 16-17 (Fla. 2d DCA 2003) (quoting Brown v. State, 206 So. 2d
377, 382 (Fla. 1968), overruled in part on other grounds, In re Use by Trial
Cts. of Standard Jury Instrs. in Criminal Cases, 431 So. 2d 594 (Fla. 1981)).
The Florida Supreme Court has held that robbery with a weapon is a
necessarily lesser-included offense of robbery with a firearm. See Growden
v. State, 372 So. 2d 930, 931 (Fla. 1979); accord Thompson v. State, 487
So. 2d 311, 313 (Fla. 5th DCA 1986).

   Where a defendant is charged with attempting to commit a certain
crime, a necessarily lesser-included offense of that crime is attempting to
commit the necessarily lesser-included offense for the certain underlying
crime. For instance, in Miller, the court held that attempted armed robbery
was a necessarily lesser-included offense of attempted carjacking, as
“every carjacking is also a robbery.” 870 So. 2d at 17 (quoting Fryer v.
State, 732 So. 2d 30, 32 (Fla. 5th DCA 1999)). Similarly, in Fleming v.
State, 557 So. 2d 621 (Fla. 4th DCA 1990), this Court reversed a conviction
for attempted second-degree murder and remanded where the trial court
erroneously refused to instruct on the lesser-included offense of attempted
manslaughter. Id. at 621-22.

   Applying those principles to this case, we conclude that the court erred
in failing to instruct on attempted armed robbery with a weapon. Grant
was charged with attempted armed robbery with a firearm pursuant to
section 812.13(2)(a), Florida Statutes (2010) (robbery with a firearm), and
section 777.04, Florida Statutes (2010) (attempts).1 Defense counsel
requested that the court instruct the jury on several lesser-included
charges, including attempted armed robbery with a weapon, but the trial
court denied the request. Appellate counsel did not raise this properly
preserved claim in the direct appeal. Armed robbery with a weapon is a
lesser-included offense of armed robbery while carrying a firearm.
Growden, 372 So. 2d at 931. Therefore, the attempt to commit armed

1 The State also charged Grant with wearing a mask, which constitutes an
enhancement to the charges. See § 775.0845, Fla. Stat. (2010). Instruction on
this element is required for both the charged crime and any lesser-included
offenses.


                                     3
robbery with a weapon is a necessarily lesser-included offense of attempted
armed robbery with a firearm, and the jury should have been instructed
on the lesser-included offense. Had appellate counsel raised this on
appeal, reversal would have been required. Thus, all elements of IAAC are
present.

   We reject the State’s argument, relying on Sanders v. State, 946 So. 2d
953 (Fla. 2006), that this claim of IAAC cannot lie because it is founded on
the jury’s exercise of its “pardon power,” which would present a matter of
pure speculation, thereby precluding demonstration of the prejudice prong
required for IAAC. The State confuses the standard for ineffective
assistance at the trial level with ineffective assistance at the appellate level.
In Sanders, the Florida Supreme Court recognized that the failure to
instruct on the next included lesser offense is per se reversible error on
appeal, but held that the possibility of a jury pardon could not constitute
Strickland2 prejudice in collateral proceedings. Sanders, 946 So. 2d at
960.    IAAC claims require a finding of prejudice in the appellate
proceedings—that confidence in the appellate proceeding is undermined
by the serious error. As yet, the Florida Supreme Court has not held that
a petition for IAAC is governed by a consideration of prejudice in the
ultimate outcome of the criminal proceeding.

    We are required to grant the petition for IAAC. Reversing for a new
appellate proceeding is unnecessary, however, as the failure to instruct on
the necessarily lesser-included offense constituted a per se reversible
error. No review of the record or harmless error analysis is required;
therefore, a second appeal on this issue would be unnecessary. In Riley
v. State, 25 So. 3d 1 (Fla. 1st DCA 2008), rev. dismissed, 26 So. 3d 1288
(Fla. 2009), the court reversed for a new trial when it granted a petition for
IAAC on the grounds that appellate counsel had failed to argue a per se
reversible error of failing to instruct on a lesser-included offense. We follow
the same course, as a new appeal would be redundant.

   Accordingly, we grant the petition. We vacate Grant’s conviction and
sentence for attempted armed robbery with a firearm while wearing a
mask, and remand for a new trial.

     Petition granted.

MAY and LEVINE, JJ., concur.

                               *         *           *

2   Strickland v. Washington, 466 U.S. 668 (1984).

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Not final until disposition of timely filed motion for rehearing.




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