DERRICK HOLMES v. THE STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: January 25, 2023
• Docket: 22-1363
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed January 25, 2023. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-1363 Lower Tribunal No. F05-16085 ________________

Derrick Holmes, Appellant,

vs.

The State of Florida, Appellee.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Laura Shearon Cruz, Judge.

Derrick Holmes, in proper person.

Ashley Moody, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for appellee.

Before LOGUE, LINDSEY, and MILLER, JJ.

PER CURIAM.

In this appeal of a denial of a motion under Rule 3.850 of the Florida

Rules of Criminal Procedure, we affirm on all claims except the first. Appellant’s first claim, namely that his lawyer was ineffective for failing

to raise an insanity defense, failed to assert a legally sufficient claim.

Accordingly, while the trial court properly denied this claim, Appellant should

have been given an opportunity to amend his motion to state a legally

sufficient claim, as the State commendably concedes.

Under Florida law, insanity requires proof that the defendant 1) “had a

mental infirmity, disease, or defect,” and 2) that “because of this condition,”

he or she “did not know what [he or she] was doing or its consequences or .

. . although [he or she] knew what [he or she] was doing and its

consequences, [he or she] did not know it was wrong.” Fla. Std. Jury Instr.

(Crim.) 3.6(a).

Here, the Appellant’s motion referenced a finding that he lacked the

capacity to appreciate the criminality of his conduct. The lack of capacity to

appreciate the criminality of conduct pertains to a potential statutory

mitigating factor in the penalty phase of a capital murder trial. Florida

appellate courts, including the Supreme Court, have repeatedly recognized

that the standard for lack of appreciation of the criminality of one’s conduct

does not constitute insanity, and entails a lower level of proof than does

insanity. The Florida Bar v. Musleh, 453 So. 2d 794, 796-97 (Fla. 1984);

Johnson v. State, 44 So. 3d 51, 71-72 (Fla. 2010).

2 As the Appellant’s motion does not set forth a legally sufficient claim

that he was insane at the time of the offense and that counsel was therefore

ineffective for failing to obtain and present an expert in support of that

defense, the denial of that claim on the merits must be reversed. This claim

should have been denied because it failed to state a legally sufficient claim

and the Appellant should have been granted an opportunity to assert a

legally sufficient claim. Spera v. State, 971 So. 2d 754 (Fla. 2007); Valle v.

State, 20 So. 3d 979 (Fla. 3d DCA 2009).

Affirmed in part, reversed in part, and remanded for further

proceedings.