DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JAMIE GRANT,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

No. 4D15-1590

[February 24, 2016]

Petition alleging ineffective assistance of counsel to the Circuit Court 

for the Nineteenth Judicial Circuit, Indian River County; Cynthia Cox, 

Judge; L.T. Case No. 2010CF1637A.

Jamie Grant, Crawfordville, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. 

Bettendorf, Assistant Attorney General, West Palm Beach, for respondent.

WARNER, J.

Jamie Grant petitions for habeas corpus relief on the grounds of 

ineffective assistance of appellate counsel (“IAAC”). We grant his petition, 

concluding that counsel was ineffective in failing to raise on direct appeal 

the trial court’s error in denying his request for a jury instruction on a 

necessarily lesser-included offense to the main charge. As this constitutes 

a per se reversible error on direct appeal and a new appeal would be 

redundant, we vacate his conviction and sentence and remand for a new 

trial.

Grant was convicted in the Nineteenth Judicial Circuit of attempted 

armed robbery while carrying a firearm and wearing a mask, and 

possession of a firearm with an altered serial number. On the attempted 

armed robbery count, he was sentenced to fifteen years in prison with a 

ten-year mandatory minimum because he was carrying a firearm. See § 

775.087(2), Fla. Stat. (2010). On the possession of a firearm count, he 

received time served. On appeal, this Court affirmed the convictions, but 

reversed the mandatory minimum sentence and remanded for 

resentencing. Grant v. State, 138 So. 3d 1079, 1085-87 (Fla. 4th DCA 
2

2014) (holding the jury’s finding that Grant “carried a firearm” while 

committing the attempted robbery was insufficient to support the 

mandatory minimum on the basis of constructive possession).

Grant filed a petition for IAAC, contending that his appellate counsel 

was ineffective in failing to argue reversible error in the trial court’s: (1) 

denial of his motion to suppress and (2) refusal to instruct the jury on the

lesser-included offense of attempted armed robbery with a weapon, as 

requested by counsel. We reject the first ground without further 

discussion but grant relief on the second ground.

To demonstrate a claim of IAAC, petitioner must show that his appellate 

counsel’s performance was not only deficient, but also that it so prejudiced 

the petitioner as to undermine confidence in the result of the appeal. 

Rutherford v. Moore, 774 So. 2d 637, 643 (Fla. 2000).

The Florida Supreme Court held in State v. Abreau, 363 So. 2d 1063 

(Fla. 1978), that a trial court’s failure to instruct on the next immediate 

lesser-included offense, one step removed from the offense of conviction, 

constitutes per se reversible error. Id. at 1064. Therefore, the appellate 

court does not conduct a harmless error analysis, because to do so would 

engage in speculation as to the effect of properly instructing the jury on 

the ultimate verdict. Id. The court further explained in Johnson v. State,

53 So. 3d 1003 (Fla. 2010):

Another circumstance in which this Court has held that an 

error is per se reversible because the reviewing court cannot 

conduct a harmless error analysis is when a jury is not 

instructed on a lesser-included offense one step removed from 

the charged offense. In such a situation, the reviewing court 

cannot determine the effect of the error on the jury because 

the court cannot know whether the jury would have convicted 

the defendant of the next lesser included offense if the jury 

had been given the option. As explained by this Court: “If the 

jury is not properly instructed on the next lower crime, then 

it is impossible to determine whether, having been properly 

instructed, it would have found the defendant guilty of the

next lesser offense.” Pena v. State, 901 So. 2d 781, 787 (Fla.

2005) (citing State v. Abreau, 363 So. 2d 1063 (Fla. 1978)). To 

conduct a harmless error analysis in that situation would be 

to engage in pure speculation.

Id. at 1008. Thus, the failure to raise on appeal the denial of a properly

preserved meritorious request for an instruction on a lesser-included 
3

offense would constitute deficient performance which substantially 

undermines the appellate process, because, if correct, the matter would 

require reversal for a new trial.

“Necessarily lesser included offenses are those where ‘the burden of 

proof of the major crime cannot be discharged, without proving the lesser 

crime as an essential link in the chain of evidence.’” Miller v. State, 870 

So. 2d 15, 16-17 (Fla. 2d DCA 2003) (quoting Brown v. State, 206 So. 2d 

377, 382 (Fla. 1968), overruled in part on other grounds, In re Use by Trial 

Cts. of Standard Jury Instrs. in Criminal Cases, 431 So. 2d 594 (Fla. 1981)). 

The Florida Supreme Court has held that robbery with a weapon is a 

necessarily lesser-included offense of robbery with a firearm. See Growden 

v. State, 372 So. 2d 930, 931 (Fla. 1979); accord Thompson v. State, 487 

So. 2d 311, 313 (Fla. 5th DCA 1986).

Where a defendant is charged with attempting to commit a certain

crime, a necessarily lesser-included offense of that crime is attempting to 

commit the necessarily lesser-included offense for the certain underlying 

crime. For instance, in Miller, the court held that attempted armed robbery

was a necessarily lesser-included offense of attempted carjacking, as 

“every carjacking is also a robbery.” 870 So. 2d at 17 (quoting Fryer v. 

State, 732 So. 2d 30, 32 (Fla. 5th DCA 1999)). Similarly, in Fleming v. 

State, 557 So. 2d 621 (Fla. 4th DCA 1990), this Court reversed a conviction 

for attempted second-degree murder and remanded where the trial court 

erroneously refused to instruct on the lesser-included offense of attempted 

manslaughter. Id. at 621-22.

Applying those principles to this case, we conclude that the court erred 

in failing to instruct on attempted armed robbery with a weapon. Grant 

was charged with attempted armed robbery with a firearm pursuant to 

section 812.13(2)(a), Florida Statutes (2010) (robbery with a firearm), and 

section 777.04, Florida Statutes (2010) (attempts).1 Defense counsel 

requested that the court instruct the jury on several lesser-included 

charges, including attempted armed robbery with a weapon, but the trial 

court denied the request. Appellate counsel did not raise this properly

preserved claim in the direct appeal. Armed robbery with a weapon is a 

lesser-included offense of armed robbery while carrying a firearm. 

Growden, 372 So. 2d at 931. Therefore, the attempt to commit armed 

1 The State also charged Grant with wearing a mask, which constitutes an 

enhancement to the charges. See § 775.0845, Fla. Stat. (2010). Instruction on 

this element is required for both the charged crime and any lesser-included 

offenses.
4

robbery with a weapon is a necessarily lesser-included offense of attempted

armed robbery with a firearm, and the jury should have been instructed 

on the lesser-included offense. Had appellate counsel raised this on 

appeal, reversal would have been required. Thus, all elements of IAAC are 

present.

We reject the State’s argument, relying on Sanders v. State, 946 So. 2d 

953 (Fla. 2006), that this claim of IAAC cannot lie because it is founded on 

the jury’s exercise of its “pardon power,” which would present a matter of 

pure speculation, thereby precluding demonstration of the prejudice prong 

required for IAAC. The State confuses the standard for ineffective 

assistance at the trial level with ineffective assistance at the appellate level. 

In Sanders, the Florida Supreme Court recognized that the failure to 

instruct on the next included lesser offense is per se reversible error on 

appeal, but held that the possibility of a jury pardon could not constitute 

Strickland2 prejudice in collateral proceedings. Sanders, 946 So. 2d at 

960. IAAC claims require a finding of prejudice in the appellate 

proceedings—that confidence in the appellate proceeding is undermined 

by the serious error. As yet, the Florida Supreme Court has not held that 

a petition for IAAC is governed by a consideration of prejudice in the 

ultimate outcome of the criminal proceeding.

We are required to grant the petition for IAAC. Reversing for a new 

appellate proceeding is unnecessary, however, as the failure to instruct on 

the necessarily lesser-included offense constituted a per se reversible 

error. No review of the record or harmless error analysis is required; 

therefore, a second appeal on this issue would be unnecessary. In Riley 

v. State, 25 So. 3d 1 (Fla. 1st DCA 2008), rev. dismissed, 26 So. 3d 1288 

(Fla. 2009), the court reversed for a new trial when it granted a petition for 

IAAC on the grounds that appellate counsel had failed to argue a per se 

reversible error of failing to instruct on a lesser-included offense. We follow 

the same course, as a new appeal would be redundant.

Accordingly, we grant the petition. We vacate Grant’s conviction and 

sentence for attempted armed robbery with a firearm while wearing a 

mask, and remand for a new trial.

Petition granted.

MAY and LEVINE, JJ., concur.

* * *

2 Strickland v. Washington, 466 U.S. 668 (1984).
5

Not final until disposition of timely filed motion for rehearing.