               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                          IN THE DISTRICT COURT OF APPEAL

                                          OF FLORIDA

                                          SECOND DISTRICT

ARTHUR McCOMB,                   )
                                 )
           Appellant,            )
                                 )
v.                               )                Case No. 2D13-2166
                                 )
STATE OF FLORIDA,                )
                                 )
           Appellee.             )
________________________________ )

Opinion filed September 18, 2015.

Appeal from the Circuit Court for
Hillsborough County; Lisa D. Campbell,
Judge.

Howard L. Dimmig, II, Public Defender,
and Alisa Smith, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Katherine Coombs
Cline, Assistant Attorney General,
Tampa, for Appellee.


NORTHCUTT, Judge.

              Arthur McComb appeals his conviction for aggravated battery. We find no

abuse of discretion in the trial court's exclusion of the recording of a 911 call, and we

affirm on that issue without further discussion. But we agree with McComb that his trial
counsel provided ineffective assistance by failing to obtain a jury instruction on the

justifiable use of nondeadly force. Accordingly, we reverse.

              The charge arose from a fight between McComb and his roommate, Heath

Stenson. Stenson was ten years younger than McComb, seven inches taller, and about

150 pounds heavier. Stenson decided to move out, and he had collected most of his

belongings. All that remained was a television. McComb claimed that it was now his

television because Stenson had failed to repay a loan. Stenson denied owing McComb

any money. He testified that, as he bent over to unhook the cable box, McComb hit him

twice in the back of the head with a heavy duty flashlight. Stenson said he stood up,

pushed McComb out of the way, and went outside.

              McComb acknowledged the disagreement over the television, but he

claimed that Stenson instigated the fight. According to McComb, Stenson sent him

flying across the room and then came at him with the flashlight. When Stenson dropped

the flashlight, McComb grabbed it. He hit Stenson once as Stenson was leaning over

him. When the fight occurred, the two men were alone in the room.

              The combatants exited the building and traded accusations about who

assaulted whom. Stenson testified that he tried to call 911 but passed out; his girlfriend

called instead. McComb also called 911, although a neighbor urged McComb to leave

because he would be going to jail. According to the neighbor, McComb claimed that

Stenson had assaulted him.

              At trial, McComb's attorney asked for a jury instruction on the justifiable

use of deadly force during the initial charge conference, and the trial court agreed. After

closing arguments, the court reviewed the corrected instructions with the attorneys, at



                                            -2-
which time they also discussed the instruction on justifiable use of nondeadly force.

Inexplicably, however, the court failed to read that instruction to the jury. Thus, the jury

was instructed only on the justifiable use of deadly force. McComb's counsel did not

object to the instructions as read. McComb was convicted of aggravated battery with a

deadly weapon and sentenced to prison. On appeal, he argues that his trial counsel

provided ineffective assistance when she failed to object to the omission of the jury

instruction on justifiable use of nondeadly force. We agree.

              Clearly, McComb was entitled to the instruction. See Caruthers v. State,

721 So. 2d 371, 371-72 (Fla. 2d DCA 1998) ("[W]hen the evidence fails to establish

whether the force used was deadly or nondeadly as a matter of law, the question must

be determined by the jury. The only act that has been deemed deadly as a matter of

law is that of firing a firearm." (citing Stewart v. State, 672 So. 2d 865, 868 (Fla. 2d DCA

1996))). The jury's finding—that McComb used a deadly weapon—does not negate his

right to the instruction. "Deadly force occurs when the natural, probable, and

foreseeable consequences of the defendant's acts are death. . . . It is the nature of the

force that must be evaluated . . . ." Stewart, 672 So. 2d at 868 (holding that defendant

was entitled to instruction on justifiable use of nondeadly force, but not to instruction on

deadly force, when defendant used a deadly weapon, a gun, but only waved it without

firing it); see also Michel v. State, 989 So. 2d 679, 681 (Fla. 4th DCA 2008) ("A deadly

weapon, such as a knife, can be used without deadly force.").

              The Fourth District confronted a similar issue in Michel. In that case, the

defendant and the victim offered competing versions of their fight, with the defendant

claiming self-defense. The trial court instructed only on the justifiable use of deadly



                                            -3-
force, and defense counsel did not object. But he later filed a motion for new trial

asserting that he had erred by failing to request an instruction on nondeadly force. On

appeal, the Fourth District concluded that this was ineffective assistance of counsel on

the face of the record because "it is patently unreasonable to fail to request an

instruction that provides a legal defense to undisputed facts." 989 So. 2d at 681.

Michel was prejudiced because defense counsel's error deprived him of a defense. Id.

              Likewise in this case, defense counsel's error deprived McComb of a

defense. As instructed, the jury could have believed that Stenson was the aggressor

but rejected McComb's self-defense claim because Stenson did not present a threat of

"imminent death or great bodily harm" that would justify resorting to deadly force. If the

jury had been instructed on the justifiable use of nondeadly force, it would have been

called on to decide whether McComb faced an imminent use of unlawful force that

justified his resort to nondeadly force in self-defense.

              A claim that defense counsel was ineffective is seldom cognizable on

direct appeal. But such review is appropriate when counsel's failure 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." Forget v. State, 782 So. 2d 410, 413 (Fla. 2d DCA 2001)

(quoting Blanco v. Wainwright, 507 So. 2d 1377, 1384 (Fla. 1987)). An attorney

provides ineffective assistance when the attorney's performance does not meet the

standard of reasonable professional assistance and there is a reasonable probability

that the outcome of the trial would have been different but for the unsatisfactory

assistance. Id. (reversing on direct appeal based on ineffective assistance appearing

on the face of the record when counsel failed to request a jury instruction pertinent to



                                            -4-
the only evidence that would support the conviction). As was the case in Michel, both

prongs are met here. We reverse McComb's conviction and remand for a new trial.

             Reversed and remanded.



BLACK and SALARIO, JJ., Concur.




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