       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                     JOSEPH ESTON HARGRETT,
                            Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D16-2846

                           [September 5, 2018]

    Appeal of an order denying rule 3.850 motion from the Circuit Court
for the Seventeenth Judicial Circuit, Broward County; Jeffrey R. Levenson,
Judge; L.T. Case No. 10-13055CF10A.

   Joseph Eston Hargrett, Moore Haven, pro se.

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

KLINGENSMITH, J.

   Joseph Eston Hargrett appeals an order summarily denying his motion
for postconviction relief filed pursuant to Florida Rule of Criminal
Procedure 3.850.      The motion alleged that he received ineffective
assistance of counsel. We affirm in part, reverse in part, and remand for
further review of appellant’s claim that counsel was ineffective by failing
to request a jury instruction and verdict form that permitted the jury to
render a dual verdict of theft and resisting a merchant. See Stuckey v.
State, 972 So. 2d 918, 923 (Fla. 5th DCA 2007).

   A plain-clothed loss prevention officer (LPO) in a home improvement
store observed Hargrett remove theft sensors from store item packaging,
place the items in his pockets, and then exit the store after passing all
points of sale without purchasing them. The LPO testified that upon
confronting Hargrett in an area where LPOs may apprehend potential
shoplifters, Hargrett became violent, struck him, and caused injuries.
When the police arrived, they found the stolen items in Hargrett’s pockets.
    Hargrett was charged with robbery under section 812.13(1), Florida
Statutes (2010). At trial, the State presented evidence from surveillance
tapes depicting the incident. Hargrett’s counsel raised inconsistencies
between victim testimony and surveillance tape evidence regarding the use
of force and violence to accomplish the taking, and therefore called into
question the time of the “taking” as required under the statute. See §
812.13(3)(b). From this, his counsel argued that “robbery” was an
overcharge, though he acknowledged the occurrence of theft and
“[r]esisting, maybe.”

    The court instructed the jury on robbery, resisting a merchant, and
theft. The verdict form indicated that the jury should select one of the
three offenses. Ultimately, it found Hargrett guilty of robbery. 1 In this
postconviction appeal, he alleges that he told trial counsel to request the
jury instruction that permits it to find a defendant guilty of resisting a
merchant and theft, and that counsel was ineffective when he failed to do
so.

    In Stuckey, the Fifth District explored the history of robbery’s “taking”
element. 972 So. 2d at 922-23. It held that a defendant was entitled to
have the trial court instruct the jury that it could convict him of both petit
theft and resisting a merchant, as lesser offenses of robbery. Id. at 923.
The comments to the standard jury instructions were amended to reflect
Stuckey’s holding: “For the crime of robbery, a jury can convict of two
lesser-included offenses such as 1) theft and assault or 2) theft and
resisting a merchant in appropriate cases.” In re Std. Jury Instr. (Crim)—
Report No. 2012-09, 122 So. 3d 263, 287 (Fla. 2013). But see Gordon v.
State, 219 So. 3d 189, 194 (Fla. 3d DCA 2017) (refusing to make a per se
rule that a robbery defendant is automatically entitled to a compound
offense instruction and distinguishing Stuckey); Spencer v. State, 71 So.
3d 901, 903 (Fla. 1st DCA 2011) (reversing robbery conviction where trial
court rejected the jury’s first verdict form that found the defendant guilty
of petit theft and assault because such rejection was contrary to the jury
pardon doctrine).

   While Stuckey was a direct appeal, trial courts have considered the
issue regarding “dual lesser-included offenses” on collateral review when
a defendant alleges that counsel failed to request the instruction. See
Thomas v. State, 241 So. 3d 278, 278 (Fla. 5th DCA 2018) (reversing
summary denial of a rule 3.850 motion where the verdict form offered the

1 This Court affirmed his judgment and sentence. See Hargrett v. State, 138 So.
3d 1040 (Fla. 4th DCA 2014) (table decision). The direct appeal did not challenge
the jury instructions.

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individual crimes and the compound crime of burglary with a battery, but
did not provide the option to find defendant guilty of both trespass and
battery); Gian- Grosso v. State, 899 So. 2d 392, 393 (Fla. 4th DCA 2005)
(reversing and remanding for further review in a collateral case concerning
burglary with an assault or battery and its lesser included offenses of
trespass and battery).

   Here, the trial court rejected Hargrett’s claim, and concluded that any
deficiency by counsel resulted only in his loss of the opportunity for a jury
pardon, which does not satisfy Strickland’s 2 prejudice component. See
Sanders v. State, 946 So. 2d 953, 959 (Fla. 2006). 3 While the First District
Court of Appeal also views such a claim as tied to a jury’s pardon power,
see Spencer, 71 So. 3d at 903, we disagree and certify conflict with that
case. The granting of this instruction is grounded in the defendant’s right
to have the jury consider lesser-included offenses supported by the
evidence, not a jury pardon. See Thomas, 241 So. 3d at 278; Gordon, 219
So. 3d at 197 n.8; Stuckey, 972 So. 2d at 923. 4

   The jurors in both the Stuckey and Gian-Grasso cases asked the trial
judge about selecting two of the lesser-included offenses but were
instructed to select one. In the instant case, the jury asked about the
“initial contact” and whether it mattered “who made the first hit/contact?”
This reflects the jury’s concern with the timing of the force relative to the
“taking.” See Stuckey, 972 So. 2d at 922-23.

   Since the evidence presented at Hargrett’s trial was sufficient to
support his conviction for each of the lesser-included offenses, we reverse
the trial court’s summary denial of the claim, and remand for it to either
attach records conclusively refuting Hargrett’s claim, or in the alternative,
to hold an evidentiary hearing during which the trial court may consider
any issues regarding waiver or strategy. See Gian-Grasso, 899 So. 2d at


2 Strickland v. Washington, 466 U.S. 668, 694 (1984).
3 We note that our decision in Gian-Grasso predated Sanders and its analysis of
Strickland’s prejudice with respect to a “jury pardon.”
4 Though the Florida Supreme Court is considering the viability of the jury pardon

doctrine, this Court has declined to hold that it was abrogated. See Caruthers v.
State, 232 So. 3d 441 (Fla. 4th DCA 2017), review denied SC 18-51, 2018 WL
987286 (Fla. Feb. 20, 2018); see, e.g., Roberts v. State, 242 So. 3d 296, 300 (Fla.
2018) (Polston, J., dissenting); Dean v. State, 230 So. 3d 420, 425-26 (Fla. 2017)
(Polston, J., concurring). In contrast, the First District has held that the Florida
Supreme Court abrogated the doctrine in Dean. See Knight v. State, No. 14-2382,
2018 WL 944663, at *3-*4 (Fla. 1st DCA Feb. 19, 2018), review granted, SC 18-
309, 2018 WL 3097727, at *1 (Fla. June 25, 2018).

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393. We affirm the summary denial of Hargrett’s remaining rule 3.850
grounds without further discussion.

  Affirmed in part, reversed in part, and remanded.

TAYLOR and CONNER, JJ., concur.

                          *        *        *

  Not final until disposition of timely filed motion for rehearing.




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