Attorney(s) appearing for the Case
Jason Williams, Lowell, pro se.
Pamela Jo Bondi , Attorney General, Tallahassee, and Kaylee D. Tatman , Assistant Attorney General, Daytona Beach, for Appellee.
For the second time, Jason Williams appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In Williams v. State, 207 So.3d 253 (Fla. 5th DCA 2016), we affirmed the summary denial of Williams's first, third and fourth claims for relief. However, we reversed the summary denial of his second claim, which asserted that his counsel was ineffective for agreeing to, or failing to object to, portions of the self-defense jury instruction that improperly shifted the burden of proof from the State to him.1 We then remanded for the trial court to attach portions of the record conclusively refuting that claim or to hold an evidentiary hearing. Williams, 207 So. 3d at 254. On remand, the postconviction court again summarily denied Williams's second claim.2 This was error.
"A challenge to a jury instruction is properly raised on appeal, but when defense counsel has failed to preserve the right to appeal the issue, a defendant may challenge his counsel's performance through a motion for postconviction relief. . . ." Ottesen v. State, 862 So.2d 30, 30 (Fla. 2d DCA 2003). An instruction that shifts the burden of proof in support of a defense to the defendant is inappropriate and cannot be viewed as reasonable trial strategy. Adams v. State, 727 So.2d 997, 999-1000 (Fla. 2d DCA 1999). Accordingly, Williams is entitled to an evidentiary hearing on his second claim for relief. See Hughes v. State, 22 So.3d 132, 135 (Fla. 2d DCA 2009). We reverse the trial court's order summarily denying Williams's second claim for relief and remand for an evidentiary hearing.
REVERSED and REMANDED.
SAWAYA, ORFINGER and LAMBERT, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED