Poole v. State

District Court of Appeal of Florida

Poole v. State

778 So. 2d 1048, 2001 Fla. App. LEXIS 1317, 2001 WL 120075

CourtDistrict Court of Appeal of Florida

DecidedFebruary 14, 2001

DocketNo. 1D00-1511

StatusPublished

Cited by1 cases

This text of 778 So. 2d 1048 (Poole v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Poole v. State, 778 So. 2d 1048, 2001 Fla. App. LEXIS 1317, 2001 WL 120075 (Fla. Ct. App. 2001).

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Opinion

PER CURIAM.

We reverse and remand this case because the verdict form reflects appellant was charged with committing sexual battery upon a person 12 years of age or older while using or threatening to use a deadly weapon in violation of section 794.011(3), Florida Statutes (1993). However, the trial court instructed the jury on section 794.011(4), Florida Statutes (1993)(sexual battery on a person 12 years of age or older without that person’s consent and under specified circumstances). (R. at 14.) The former crime is a life felony, and the latter is a first-degree felony. (R. at 37-38.) As a result, the trial court is to conduct an evidentiary hearing or attach portions of the record conclusively refuting appellant’s claim that defense counsel provided ineffective assistance by failing to object to the erroneous instruction.

REVERSED and REMANDED.

DAVIS, PADOVANO and BROWNING, JJ., concur.

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PER CURIAM.

We reverse and remand this case because the verdict form reflects appellant was charged with committing sexual battery upon a person 12 years of age or older while using or threatening to use a deadly weapon in violation of section 794.011(3), Florida Statutes (1993). However, the trial court instructed the jury on section 794.011(4), Florida Statutes (1993)(sexual battery on a person 12 years of age or older without that person’s consent and under specified circumstances). (R. at 14.) The former crime is a life felony, and the latter is a first-degree felony. (R. at 37-38.) As a result, the trial court is to conduct an evidentiary hearing or attach portions of the record conclusively refuting appellant’s claim that defense counsel provided ineffective assistance by failing to object to the erroneous instruction.

REVERSED and REMANDED.

DAVIS, PADOVANO and BROWNING, JJ., concur.

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Bluebook (online)

778 So. 2d 1048, 2001 Fla. App. LEXIS 1317, 2001 WL 120075, Counsel Stack Legal Research, https://law.counselstack.com/opinion/poole-v-state-fladistctapp-2001.

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