Petition for Ineffective Assistance of Appellate Counsel Granted After Trial Court Applied Incorrect Legal Standard on New Trial Motion
Our client was charged with aggravated battery with a firearm. The evidence at trial showed the client was involved in an argument with a man who was hanging out with a small group of people outside of a business. The client and the individual got into a heated argument and the individual, along with his small group of friends, approached the client. The client, who was now in fear for his life retrieved a firearm from his truck and fired two warning shots. Unfortunately, one of the warning shots hit a wall and struck a woman.
After the jury returned a verdict of guilty, trial counsel filed a motion for new trial. Within the motion, trial counsel pointed out that the woman who was struck by the stray bullet had given a previous statement to law enforcement wherein she stated it did not look like the client was shooting at the individual, it looked like he was just trying to scare them off. The motion argued that the greater weight of the evidence showed a lack of intent to touch or strike which is an essential element of aggravated battery. Trial counsel argued that the verdict was contrary to the weight of the evidence and that the State failed to prove that the client “intentionally” shot the victim against her will. The State responded by arguing that this is not the time for the judge to sit in the place of the jurors. The trial court agreed with the State and denied the motion.
The client then hired The Law Office of Robert David Malove to review his case. We went to work. After reviewing the case file, we filed a petition for ineffective assistance of appellate counsel, pursuant to Florida Rule of Appellate Procedure 9.141(d). We argued that appellate counsel was ineffective for failing to argue that the trial court applied the incorrect legal standard of review when denying the client’s motion for new trial.
The 4th District Court of Appeal in West Palm Beach, Florida, agreed with our argument and determined that appellate counsel was ineffective for failing to raise this meritorious issue and remanded it back to the trial court to reconsider the motion for new trial under the correct legal standard.
[Related] A Closer Look at Our Client’s Granted Petition – Remanded With Instructions
When it Comes to Matters of Criminal Appeals in Florida, Your Legal Counsel Matters
When choosing an appellate and/or post-conviction counsel it is important to remember that this is a criminal defendant’s last opportunity to attack their judgment and sentence. The Law Office of Robert David Malove has the experience and proven track record to give you or your loved one the best representation in Florida.