Appellate Attorney was ineffective for not raising the fundamentally flawed verdict forms on direct appeal.
On the Verdict Form-(TR -210) for Count 1, the verdict form gave the jury the choice of finding the petitioner guilty of attempted robbery with a firearm, yet the lesser included offenses were robbery with a deadly weapon, robbery with a weapon, robbery and petit theft (jury never given written instructions on petit theft). The verdict form confused the jury, giving them the only the choice of picking Attempted Robbery with a Firearm as they knew that Robbery was not a result of the charges. Thereby, the jury could not deliberate on whether petitioner was guilty of the lesser included offenses taking away their pardon power. MICHAEL HOSANG v. STATE OF FLORIDA, No. 4D07-2239 [June 25, 2008].
As the Fourth District has recently explained in describing the jury’s inherent pardon power, “Florida law permits a jury to be lenient and pardon a defendant either by finding him not guilty or by convicting a defendant of a lesser included offense.” State v. Carswell, 914 So.2d 9, 11 (Fla. 4th DCA 2005), review dismissed, 923 So.2d 1161 (Fla.2006).
On the Verdict Form (Tr-210) for Count 2, it lists the count as Aggravated Assault with a Firearm and then beneath say that the jurors need to find that the petitioner actually possessed a firearm.
Under the evidence in this case, the jury could only conclude that the deadly weapon was a firearm. No reasonable jury could have found that the defendant used a weapon other than a firearm. Thus, the lesser-included offense of attempted robbery with a firearm and aggravated assault with a deadly weapon other than a firearm did not give the jury an honest option to “pardon” the defendant. Failing to require a separate finding that the offense was committed with a firearm denied the jury the opportunity to exercise its inherent “pardon” power by convicting the petitioner only of aggravated assault with a deadly weapon, rather than with a firearm.
Therefore, the verdict form’s misinformation constitutes a violation of the defendant’s state and federal constitutional rights.
“[M]isdescription of an element of the offense . . . deprived] the jury of its fact-finding role” (Carella v. California (1989) 491 U.S. 263,268 (conc. opn. of Scalia, J.)) and thereby violated appellant’s right to trial by jury (U.S. Const., 5th, 6th, 8th & 14th Amendments. Fernandez v. State, 570 So.2d 1008, 1010 (Fla. 2d DCA 1990).
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