Filing # 74282889 E-Filed 06/29/2018 08:45:37 AM. IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT IN AND. FOR BREVARD COUNTY, FLORIDA. CASE NO: 05-1997-CF-014805-AXXX-XX STATE OF FLORIDA, Plaintiff, vs. STEPHANIE LEE KING, Defendant. J ORDER GRANTING DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF (GROUND 6) This matter came before the Court upon a Mandate from the Fifth District Court of Appeal issued July 30, 2008 (Composite Exhibit A, Opinion and Mandate). The Court's opinion stated: ‘We do not agree with the trial court’s summary disposition of ground six of Defendant's motion, however, because we conclude that an evidentiary hearing is required on the issue of counsel's advice conceming the plea.” King v. State, 985 So. 2d 580, 582 (Fla. 5th DCA, 2008). The evidentiary hearing was initially scheduled for October 20, 2008 (Exhibit B, Order) and then cancelled (Exhibit C, Order). The hearing was not rescheduled until after the Defendant retained current counsel on June 1, 2016. The evidentiary hearing was held in this matter on June 6, 2018. Having considered the argument of counsel, written closing arguments, the Court file and the relevant legal authority, the Court makes the following conclusions of law and findings of fact Filing 74282889 STATE VS KING STEPHANIE LEE (05-1997-CF-014805-AXXX-XX,State v. King _ The Defendant was charged by Indictment with First Degree Felony Murder and Aggravated Child Abuse on July 1, 1997 (Exhibit D, Indictment). The Defendant went to trial and was found guilty as charged (Composite Exhibit E, Verdicts). The Defendant was sentenced to an incarcerative term of natural life for First Degree Felony Murder and time served (995 days) for Aggravated Child Abuse (Exhibit F, Judgment). The Judgment and Sentence were affirmed on appeal. King v. State, 790 So. 2d 1253 (Fla. 5th DCA 2001). Ground Six of the Defendant's Motion is titled: “TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY ADVISING DEFENDANT THAT PLEA OFFER WAS UNACCEPTABLE AND THAT TRIAL COUNSEL FELT THAT DEFENDANT COULD NOT BE CONVICTED OF FIRST DEGREE FELONY MURDER BASED ON THE EVIDENCE OF THE STATE." It is the Defendant's position that she would have accepted the State's plea offer had she known that she was faced with spending the rest of her life in prison In between the issuance of the Mandate and the evidentiary hearing, the Florida Supreme Court issued its opinion in Alcom v. State, 121 So. 3d 419 (Fla. 2013). The Court held that, “to establish prejudice, the defendant must allege and prove a reasonable probability, defined as a probability sufficient to undermine confidence in the ‘outcome, that (1) he or she would have accepted the offer had counsel advised the defendant correctly, (2) the prosecutor would not have withdrawn the offer, (3) the court, would have accepted the offer, and (4) the conviction or sentence, or both, under the Filing 74282889 STATE VS KING STEPHANIE LEE (05-1997-CF-014805-AXXX-XX,State v. King _ offers terms would have been less severe than under the judgment and sentence that in fact were imposed.” Alcor at 430. Based upon Alcorn, the State moved to strike ground 6 of the Defendant's Motion and requested alternatively that the Court compel the Defendant to file an ‘Amended Ground 6 which complied with Alcorn. The Motion was denied. It is the Court's understanding that once a Mandate is issued, it is not at liberty to stray from that Mandate and it must simply carry out the actions directed by the appellate court Specifically, “{wJhen an appellate court issues a mandate, compliance with the mandate by the circuit court is purely a ministerial act. The circuit court does not have the authority to modify, nullify or evade that mandate.” Manata v. State, 226 So. 3d 1027, 1028 (Fla 1st DCA 2017) citing Huffman v. Moore, 834 So. 2d 300 (Fla, 1st DCA 2002). “Once the case is decided on appeal, the circuit court is bound by the decree as the law of the case and is required to perform the purely ministerial act of implementing the mandate.” Robinson v. Weiland, 988 So. 2d 1110, 1112 (Fla. Sth DCA 2008) citing Peterson v. Peterson, 882 So.2d 528, 530 (Fla. 4th DCA 2004). Based upon the Appellate Court's Mandate, the Defendant was entitled to an evidentiary hearing upon Ground 6. The Court could not strike the Defendant's claim’ or place any conditions upon her receipt of an evidentiary hearing. * See, Wilson v. News-Press Publishing Co., 819 So. 2d 262 (Fia. 2d DCA 2002) rial court could not dismiss a compiaint for failure to state a cause of action when the appellate court had already determined that the complaint stated a cause of action). See, also Hernandez v. State, 979 So. 2d 1013, 1017 (Fla 3d DCA 2008) ("Trial court is bound to follow prior rulings of the appellate court on issues implicitly addressed or necessarily considered by the appellate court so long as the facts upon which the appellate court based its decision continue to be the facts of the case") citing Woolin v. Bernay, 920 So. 2d 1151, Filing 74282889 STATE VS KING STEPHANIE LEE (05-1997-CF-014805-AXXX-XX,Statev.King (05-1997-CF-014805-AXXX-XX The following individuals testified at the evidentiary hearing: A. Michael Bross, Esquire (defense counsel at trial); Stephanie King (Defendant); Alan Diamond, Esquire (proffer); and Meryl Allawas, Esquire (prosecuting attorney at trial). In reaching this decision the Court has not considered the proffered testimony of Alan Diamond, Esquire. The Court finds that each witness was credible. To establish a colorable claim of ineffective assistance of counsel, a defendant must show that (1) counsel's performance was deficient (the defendant must do this by alleging specific acts or omissions) and (2) that the deficient performance prejudiced the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668 (1984); Cherry v. State, 659 So. 2d 1069, 1072 (Fla. 1995). “To establish Strickland prejudice [ijn the context of pleas a defendant must show the outcome of the plea process would have been different with competent advice.” Lafler v. Cooper, 566 U.S. 156, 163 (2012) Defense counsel testified that, at the time he represented the Defendant, he was having great success and good results for his clients. He was quite confident in his representation of the Defendant. It was his opinion that the worst possible outcome at trial would be a manslaughter conviction. This was in spite of the fact that he was unable to locate an expert to testify on behalf of the defense. Defense counsel admitted that, in retrospect, this was an overcalculation of his expertise and ability to win the trial. He further testified that he relayed the State's offer to the Defendant and 1163 (Fla. 3d DCA 2006), 4 Filing 74282889 STATE VS KING STEPHANIE LEE (05-1997-CF-014805-AXXX-XX,997-CF-014805-AXXX-XX State v. King that he went over its terms with her. However, it did not appear that he discussed the consequences of a verdict of guilty as charged with her.” There was no affirmative testimony from defense counsel that he informed the Defendant about the maximum sentence for first degree felony murder. Nor did defense counsel testify that, in the absence of a specific recollection, he had a practice of discussing statutory maximums with his clients. The Defendant testified that defense counsel had told her that if she lost at trial she would serve 25 years and then be out on parole. She was never told by counsel that life meant life and remained unaware until sentencing.’ Defense counsel's failure to fully inform the Defendant of the sentencing possibilities if she was to be found guilty of first degree felony murder constitutes deficient performance. While Ground 6 of the Defendant's Motion did not comply with the pleading requirements of Alcorn, regarding prejudice, the Court finds that, based upon the testimony and evidence presented at the evidentiary hearing, each of the elements can be addressed twas established at hearing that the State had made a conditional but firm written plea offer wherein it offered to reduce the charge to second degree murder for which the Defendant would be incarcerated for 25 years followed by 15 years of probation (State's Exhibit 2). The Defendant was notified that the offer would be ? When asked if he told the Defendant that if she was convicted of first degree murder that she would have to serve 25 years before being eligible for parole, defense counsel responded that he was not sure, he was not even sure that parole existed at that time. ° The Defendant was not informed of the maximum penalty she faced at the time she rejected the State's plea offer on the record prior to the suppression hearing (State's Exhibit 5). Filing 74282889 STATE VS KING STEPHANIE LEE (05-1997-CF-014805-AXXX-XX,Statev.King 05-1997-CF-014805-AXXX-XX revoked if she pursued her Motion to Suppress. Prior to the suppression hearing, the offer was placed on the record and the Defendant rejected the offer on the record (State's Exhibit 5). Defense counsel testified that he recalled putting the plea offer on the record because the trial judge had a reputation for giving offers. Further, the prosecuting attorney testified that she did not make plea offers during trial and that she would never have allowed an open plea. itis clear the State made an offer that was not revoked until the Motion to Suppress commenced. It is equally clear that second degree murder conviction coupled with a sentence of 25 years of incarceration followed by 15 years of probation is less severe than a first degree felony murder conviction coupled with a sentence of incarceration for the duration of the Defendant's natural life, without possibility of parole. Given defense counsel's testimony that the trial judge had a reputation for making his own offers and the prosecuting attorney's reluctance to allow an open plea, the Court finds that the trial judge would have accepted the offer. As in Louima v. State, So. 3d _, 43 Fla. L. Weekly D1247a, 2018 WL 27169289, *2 (Fla. 4th DCA June 6, 2018), ‘this case presents a claim of misadvice as to factual information which was necessary to allow the defendant to weigh whether to accept the plea offer.” The Defendant testified that defense counsel had told her that if she lost at trial she would serve 25 years and then be out on parole. She testified that, in her mind, this was effectively what the State Attorney had offered. Had she realized that she was facing true life imprisonment, the Defendant testified she would have taken the State's 6 Filing 74282889 STATE VS KING STEPHANIE LEE (05-1997-CF-014805-AXXX-XX,State v. King _ 05-197-CF-014805-AXXX-XX offer of 25 years of incarceration followed by 15 years of probation. Because she believed that she faced a maximum of 25 years of imprisonment, she was willing to “risk’ going to trial. The Court finds this testimony credible. Based upon the foregoing, the Court finds that the Defendant was prejudiced by counsel's deficient performance Although the Alcorn Court provided a rubric for evaluating prejudice in this situation, the Court specifically refrained from providing trial courts with any guidance for fashioning a remedy. Alcom at 433. While the Second District Court of Appeal stated that “Even where trial counsel's misadvice results in a defendant's rejection of a favorable plea offer, the State is not required to reoffer its original plea on remand,” it cited pre-Lafler cases as authority. Odegaard v. State, 137 So. 3d 505, 508 (Fla. 2d DCA 2014). Thus, the Court will look to Lafler for guidance. As in Lafler, the Defendant in this case rejected a favorable plea offer based upon ineffective assistance of counsel and, as a result, received a harsher sentence based upon a jury's finding of guilt. In this case, the Defendant was offered a reduced charge and a specific sentence. “In these circumstances, the proper exercise of discretion to remedy the constitutional injury may be to require the prosecution to reoffer the plea proposal.” Lafler at 171 The Court finds that the proper remedy is to restore the Defendant to the position she was in before she suffered prejudice ORDERED AND ADJUDGED: Postconviction Relief is GRANTED as to Ground 6 of the Defendant's Motion for Postconviction Relief. The State is hereby DIRECTED to reoffer its plea proposal Filing 74282889 STATE VS KING STEPHANIE LEE (05-1997-CF-014805-AXXX-XX,State v. King 05-1997-CF-014805-AXXX-XX outlined in the Assistant State Attorney's correspondence to defense counsel dated June 16, 1998 and placed into evidence at the evidentiary hearing as State's Exhibit 2 DONE AND ORDERED this 2S day of bank= Brevard County, Florida 2018 at Titusville, OBIN C. EMONDDIS — CIRCUIT JUDGE CLERK'S CERTIFICATE OF SERVICE | do certify that copies hereof have been furnished electronically, by courier delivery, or by U.S. Mail to the Office of the State Attorney and to Kepler Funk, 3962 West Eau Gallie Bivd. #8, Melbourne, Florida, 32934, this day of , 2018, SCOTT ELLIS CLERK OF THE COURT BY: Deputy Clerk Filing 74282889 STATE VS KING STEPHANIE LEE (05-1997-CF-014805-AXXX-XX,OR BK 5880 PG 8057 Filing 74282889 0 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT. JANUARY TERM 2008 STEPHANIE KING, Appellant, v Case No 5006-2381 STATE OF FLORIDA, Appellee Opinion filed May 23, 2008 3.850 Appeal from the Circuit Court for Brevard County, Charles M Holcomb, Judge James S Purdy, Public Defender, and Susan A Fagan, Assistant Public : Defender, Daytona Beach, for Appellant . poe Bill McCollum, Attorney General, Tallahassee, a a and Wesley Heidt, Assistant Attorney 2 General, Daytona Beach, for Appellee 2 PER CURIAM Stephanie King [‘Defendant’] has appealed the tnal court's denial of her rule 3.850 motion for post conviction relief, which raises six grounds We affirm without discussion on the court's denial of grounds two through five For the reasons discussed In this opinion, we also affirm the tnal court's denial of ground one, but reverse and remand for an evidentiary hearing on ground six On July 1, 1997, Defendant was charged with first degree felony murder and aggravated child abuse On February 29, 2000, following a Jury tral, Defendant was Composite cs-wr or ouiosanoonOR BK 5880 PG 8058 Ao found guilty of both offenses She was sentenced to life imprisonment for the felony murder offense and to time served for the aggravated child abuse offense Defendant directly appealed her convictions! This Court affirmed Defendant's conwictions in King v State, 780 So 2d 1253 (Fla Sth DCA 2001) Defendant then filed ‘a motion for post conviction relief, pursuant to Florida Rule of Cnminal Procedure 3 850 During the inal, the trial court instructed the jury that ‘[t]he underlying felony for first-degree felony murder 1s aggravated child abuse” The jury was then instructed that In order to find Defendant guilty of aggravated child abuse, it had to find that the State proved the following 1 [Defendant] wilfully tortured or maliciously punished or knowingly or willfully abused [Victim] and in so doing caused great bodily {sic}, permanent disabilty or permanent disfigurement to the child, [Victim] 2 Victim was under the age of eighteen years as alleged in the Indictment, a child offfilvears of age The tnal court instructed the jury that “maliciously” meant “wrongfully, intentionally and without legal justification or excuse" The foregoing instructions were given with the consent of the parties and were based on the standard jury instruction for aggravated child abuse available at the time In ground one of her motion for post-conviction reltef, Defendant argued that her tnal counsel, A Michael Bross ["Bross"], was ineffective for failing to object to the standard jury instruction for aggravated child abuse used in Defendant's tral, which Improperly defined the term "maliciously" as tt relates to the elements of the charge "In her direct appeal, the sole issue rarsed by Defendant was that “the tnal court abused its discretion by preventing defense counsel from questioning prospective jurors on the effect, any, that viewing graphic autopsy photographs might have on their ability to be fair" King v State, 790 So 2d 1253, 1264 (Fla 5th DCA 2001) 2 Filing 74282889 STATE VS KING STEPHANIE LEE (05-1997-CF-014805-AXXX-XX,OR BK 5880 PG 8059 4 fro The State responded that, in light of the state of the law at the time, defense counsel was not ineffective for failing to object to the use of the standard jury instruction that was given The State acknowledged that in Reed v State, 837 So 2d 366 (Fla 2002), the Supreme Court subsequently stated that it was fundamental error for the tral court to give the standard instruction defining "maliciously" because the correct defintion is “with spite, ill wil, hatred or evil intent" But the Reed court also said that its holding was retroactively applicable only to cases that were not final or pending on direct review As the State notes, Defendant's appeal was final before Reed was issued Bross, to his credit, was aware of the correct definition and did assert in his motion for judgment of acquittal that the State had not met its burden on the element of “maliciousness " Bross relied on Freeze v State, 553 So 2d 750 (Fla 2d DCA 1989), a pre-Reed case that articulated the proper definition of malice The Freeze court had, in tur, taken the definition from the Florida Supreme Court's opinion in State v Gaylord, 366 So 2d 313 (Fla 1978) Defendant argues that Bross was ineffective because, although he was on notice that the maliciousness instruction was improper and, indeed, was aware of a decision identifying the correct definition of "maliciously" on which he relied in his motion for judgment of acquittal, he failed to request a correct instruction Bross testified that he did not object to the erroneous definition contained in the instruction because he believed the parties had to use the standard jury instruction He testified that, while he was aware of case law reflecting the correct defintion of "maliciously," he failed to "assimilate" that such case law “clearly demonstrated that the [standard] jury instruction should have been altered" He testified that he "should have 3 Filing 74282889 STATE VS KING STEPHANIE LEE (05-1997-CF-014805-AXXX-XX,OR BK 5880 PG 8060 40 asked for the change im jury instruction to spite, ll will, hatred, or evil intent in accordance with the Freeze case," but that he did not do that The tral court denied Defendant relief as to ground one, concluding that, because her case was final at the time Reed was decided, it could not retroactwely apply Reed to resolve the issue in Defendant's favor We agree In Reed, our Supreme Court emphasized that its decision was not to be retroactively applied to cases that were final To resolve the question of what cases this decision ts to be applied to, we hold that this decision shall be retroactively applied to cases pending on direct review or not yet final This holding 1s based upon the reasoning in Smith v. State, 598 So 2d 1063, 1066 (Fla 1992) The standard jury instruction used in the present case has been in use for more than twenty years Retroactive application of the present case to final aggravated child abuse cases would require courts to revisit numerous final convictions and to extensively review stale records to determine if the malice element was disputed at tral We therefore expressly limit retroactive application of our decision to nonfnal cases because applying this decision to final cases would have an adverse effect on the administration of justice Reed, 837 So 2d at 370 The fact that Bross was aware of the Freeze opinion but was unaware of the law permitting challenges to erroneous standard jury instructions does not justify a different result from a situation where counsel was aware of the right to challenge erroneous standard jury instructions but was unaware of the Freeze or Gaylord decisions Based on Reed's clear language, the reason counsel failed to request a proper jury instruction 1s immatenal The tnal court gave the standard jury instruction approved by the Flonda Supreme Court This instruction was not expressly invalidated until Reed was issued in Reed, the court found that there would be an adverse affect on the administration of a Filing 74282889 STATE VS KING STEPHANIE LEE (05-1997-CF-014805-AXXX-XX,OR BK 5880 PG 8061 tlie Justice if tts decision was retroactwely applied to cases that were already final Accordingly, the trial court properly denied ground one of Defendant's motion * We do not agree with the tral court's summary disposition of ground six of Defendant's motion, however, because we conclude that an evidentiary heanng 1s required on the issue of counsel's advice concerning the plea AFFIRMED in part, REVERSED in part, and REMANDED. ORFINGER and EVANDER, JJ , concur GRIFFIN, J, dissenting, with opinion ? We recognize that the Florida Supreme Court found that the giving of the above-referenced standard jury instruction constituted fundamental error But for the Supreme Court's language expressly limiting retroactive application of Reed to nonfinal cases, we would likely find Defendant's argument to be meritorious 5 Filing 74282889 STATE VS KING STEPHANIE LEE (05-1997-CF-014805-AXXX-XX,OR BK 5880 PG 9062 Ho GRIFFIN, J, dissenting 5006-2381 Way back in 1978, in State v Gaylord, 356 So 2d 313 (Fla 1978), the Florida Supreme Court held that the term "maliciously punish" used to define aggravated child abuse was not unconstitutionally vague and overbroad, precisely because "Maliciously" does provide a definite standard of conduct understandable by a person of ordinary intelligence Malice means il! will, hatred, spite, and evil intent fd at 314 (Emphasis added) Inexplicably, however, as was later discussed m Young v State, 753 So 2d 725, 728 (Fla 1st DCA 2000), in the ensuing twenty years after Gaylord, the standard jury instruction defining "maliciously" for the crime of aggravated child abuse was not changed to reflect the Supreme Court's decision in Gaylord The Jury instruction continued to define “maliciously” as “wrongfully, intentionally, without fegal justification or excuse "' Eventually, in Reed,’ the Supreme Court confirmed that the standard jury instruction was wrong and that malice should be defined as “il wil, hatred, spite, an evil intent" Further, the court said that because the inaccurate definition reduced the state's burden of proof on an essential element of the offense, fundamental error resulted when the accurate standard jury instruction on the definition of malice was used in tnals, where the malice element was disputed id Although Reed was decided by the Flonda Supreme Court on December 19, 2002, more than a year after Defendant's direct appeal was concluded,’ the district court opinion in Reed was decided in May 2001, * The jury instruction was finally corrected in 2002 Standard Jury Instructions in Criminal Cases, 824 So 2d 881, 898 (Fla 2002) * Reed v State, 837 So 2d 366, 369 (Fla 2002) * The opinion addressing Defendant's direct appeal was filed on August 10, 2001 See King, 790 So 2d at 1253 Filing 74282889 STATE VS KING STEPHANIE LEE (05-1997-CF-014805-AXXX-XX,OR BK 5880 PG 8063 : g]io months before the mandate issued in King's appeal Reed v State, 783 So 2d 1192 (Fla 1st DCA 2001) More important, the Young decision was issued on March 21, 2000, less than thirty days after King's trial The Young court incidentally observed that the Gaylord definition of malice had long been used by Florida's intermediate appellate courts, including this Court in Moakley v State, 547 So 2d 1246 (Fla 5th DCA 1989) Although the tnal court was correct in ruling that Reed was not to be retroactively applied to King's case, that to me, does not necessarily resolve the “ineffective assistance” problem raised here Here, defense counsel was aware of the correct definition of "malice," but failed to request a correct instruction on this important element because he erroneously believed that the standard instruction had to be given Had he correctly understood his duty, he would have done as trial counsel in Young did In Young, defense counsel, like Mr Bross, moved for judgment of acquittal based on the Gaylord definition However, unlike Mr Bross, defense counsel also asked for an instruction containing the correct definition and thereby (on appeal) secured a new trial for his cent We have no way of knowing whether a different instruction would have resulted in a different verdict, but Reed does tell us that using the wrong definition is a ‘serious error because it reduces the State's burden of proof Although it Is correct to say that defense counsel should not normally be held ineffective for failing to object to an approved standard jury instruction that has not been invalidated at the time of counsel's performance, this 1s not an inflexible pnnciple At least since the 1973 decision of the Florida Supreme Court in State v Bryan, 287 So 2d 73 (Fla 1973), it has been clear that a standard instruction does not have to be given, that the tnal yudge always bears the responsibilty of accurately instructing the 2 Filing 74282889 STATE VS KING STEPHANIE LEE (05-1997-CF-014805-AXXX-XX,OR BK 5880 PG 8064 ANNO Jury and the ultimate goal is the "essential correctness of applicable law” See also Young, 753 So 2d at 728 The Supreme Court in Harvey v Dugger, 656 So 2d 1253, 1258 (Fla 1995), later explained that counsel cannot be ineffective for falling to object to the standard instruction when the court has previously upheld the validity of the instruction but, as far as | can tell, that never happened with the aggravated child abuse instruction To the contrary, the high court in Gaylord long ago adopted a definition inconsistent with the standard instruction ‘ There was certainly sufficient law on this pomt by the time of trial that counsel ought to have asked for a correct definition to be given, especially because the question of "malice" was central to the case To fail to ask for a correct definition in the instructions, knowing that Gaylord articulated a definition completely different from the one contained in the standard instruction, constituted ineffective assistance | do appreciate the majonty’s concem that this analysis violates the spint of Reed's limitation on retroactive application, but Reed never addressed ineffective assistance, it merely said that its announcement that giving the old instruction amounted to fundamental error would not apply retroactively The problem, of course, 1s that the term “ineffective” arguably could apply to any lawyer who failed to object to this standard jury instruction on grounds of inconsistency with controlling precedent from the Supreme Court In Reed, the high court was clearly concerned about the impact of tts decision on the huge number of cases that were tned using the standard instruction and which were long since final “In Thompson v State, 759 So 2d 650, 855 (Fla 2000), the court couched the test in different terms, saying that trial counsel's failure to object to standard jury Instructions that had not been invalidated by the court “does not render counsel's performance deficient" Certainly, it can be argued that the Gaylord decision invalidated the standard jury instruction, though not expressly 3 Filing 74282889 STATE VS KING STEPHANIE LEE (05-1997-CF-014805-AXXX-XX,OR BK 5880 PG 8065 (Oo | disagree that Mr Bross's knowledge of the correct definition 1s irrelevant because the reason he failed to object is irrelevant It was precisely his ignorance of the Proper course to follow in light of his knowledge of the correct definition that made him ineffective Plainly, if Mr Bross, having knowledge of the Gaylord decision, had done $0 much as object to the standard instruction’s definition of "malice," King would be in the same posture as Mr Young, who got anew trial Because Mr Bross did not object, King has no remedy It 1s an uncomfortable irony that King would likely have been able to succeed on this ineffective assistance of counsel clam but for the Supreme Court's 'ssuance of its decision in Reed, finding that the giving of this instruction was not only error, but so toxic to the trial process as to reach the status of fundamental error J would hold that the tnal court erred in falling to grant King’s 3.850 motion for post-conviction relief based on this claim of ineffective assistance of trial counsel 4 Filing 74282889 STATE VS KING STEPHANIE LEE (05-1997-CF-014805-AXXX-XX,CFN 2008150985, OR BK 5880 Page 8056, Recorded 08/06/2008 at 03:02 PM, Scott Ellis, Clerk of Courts, Brevard County Filing 74282889 ‘(0 MANDATE from DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT THIS CAUSE HAVING BEEN BROUGHT TO THIS COURT BY APPEAL OR BY PETITION, AND AFTER DUE CONSIDERATION THE COURT HAVING ISSUED ITS OPINION OR DECISION, YOU ARE HEREBY COMMANDED THAT FURTHER PROCEEDINGS AS MAY BE REQUIRED BE HAD IN SAID CAUSE IN ACCORDANCE WITH THE RULING OF THIS COURT ATTACHED HERE TO AND INCORPORATED AS PART OF THIS ORDER, AND WITH THE RULES OF PROCEDURE AND LAWS OF THE STATE OF FLORIDA WITNESS THE HONORABLE WILLIAM D PALMER, CHIEF JUDGE OF THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FIFTH DISTRICT, AND THE SEAL OF THE SAID COURT AT DAYTONA BEACH, FLORIDA ON THIS DAY DATE July 30, 2008 FIFTH DCA CASE NO 5D06-2381 gc 2 COUNTY OF ORIGIN Brevard TRIAL COURT CASE NO 05-1997-CF-014805-A Sanh? Ahaha FRANK J HABERSHAW CLERK Cast # 05-1997-CF-014805-AOHXK STATE VS KING STEBHARE REE 2 econs IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT IN AND FOR BREVARD COUNTY, FLORIDA. CASE NO _05-1997-CF-14805-AXXX APPELLATE CASE No 5D06-2381 STATE OF FLORIDA, Planuff, STEPHANIE LEE KING, Defendant $1773 1109S Litt o--y ORDER SETTING HEARING ON GROU! DEFENDANT'S MOTION FOR POST-CONVICTION RELIEE IN ACCORDANCE with the decrsion of the appellate court as to Ground Six of ‘the Defendant's Motion for Post-Conviction Rehef, the Court schedules an evidentiary hearing to address the Defendant's allegation that her attorney provided ineffective assistance of counse! when he allegedly advised her to reject a plea offer The Court has previously found the Defendant indigent and she 1s represented by the Public Defender THEREFORE it 1s ORDERED AND ADJUDGED ‘The Court will conduct an evidentiary hearing on Ground Six of the Defendant's Motion for Post Conviction Relief at the Titusville Courthouse, Titusville, Brevard County. Florida at onthe 20 dayot_QDefovbers2008 The Court has reserved Ag Adur for the hearing DONE AND ORDERED at Titusville, Brevard County, Florida this ee day: ole gue 2008, ‘CHARLES M HOLCOMB CIRCUIT COURT JUDGE 26 Xhibt BFiling 74282889 State v King . Case No_05-1997-CF-14805-AXXX CERTIFICATE OF SERVICE I hereby certify that true and correct copies of the foregoing have been furnished to the Office of the State Attorney, 400 South Street, Titusville, FL 32780. Office of the Public Defender, 400 South Street, Titusville, FL 32780, Office of the Public Defender, 444 Seabreeze Blvd . Daytona Beach, FL 32118, and the Fifth District Court of Appeal, 300 South Beach Street Daytona Beach, PL 32114 by courier or US Mail tse day of bug 2008 Mate) Mba dete. Marcia Newell Judiesal Assistant Eighteenth Judicial Cirewt Titusville Courthouse 506 South Palm Avenue Titusville, Florida 32796 STATE VS KING STEPHANIE LEE (05-1997-CF-014805-AXXX-XX,IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT IN AND FOR BREVARD COUNTY, FLORIDA, CASE NO,: 05-1997-CF-014805 STATE OF FLORIDA, STEPHANIE LEE KING, Defendant. $m} iv ZEW b- 190 B07 THE 3.850 Hearing set on October 20, 2008 at 1:30 p.m. is hereby cancelled. An appeal has been filed with the Florida Supreme Court therefore this Court has no jurisdiction. DONE AND ORDERED in Titusville, Brevard County, Florida this _% day of October, 2008 ARLES M. » Wal — Circuit Court Judge Copies to State Attomey’s Office Public Defender’s Office inordinate Filing 74262889 stare vstoxdrstortane.ee (05-1997-CF-014805-AXXX-XXCASE NUMBER 97-14805-CFA IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT OF FLORIDA, WITNESSES BREVARD COUNTY THE STATE OF FLORIDA vs STEPHANIE LEE KING W/F DOB_10/08/67 st INDICTMENT FOR COUNT I FIRST DEGREE FELONY MURDER (CF) COUNT II AGGRAVATED CHILD ABUSE (F-2) Found Sprang,Term, A.D 1997 le he to > Foreman of the Grand Jury \-48 By nana! Filing 74262089 stare vs xineebepaig Le) be 1907 D6 Fa005 HK xXIN THE NAME AND BY AUTHORITY OF THE STATE OF FLORIDA IN THE CIRCUIT COURT OF THE Eighteenth Judicial Circuit of the State of Florida for Brevard County, at the Spring Term thereof, in the year of our Lord, one thousand nine hundred and nanety-seven, the Grand Jurors of the State of Florida, inquiring in and for the body of the County of Brevard, upon their oaths do charge that on the 9th day of June, 1997, an the County of Brevard, and State of Florida. sap LEE KING, did then and there unlawfully kill a human being, iii by CAUSING, INFLICTING BLUNT FORCE TRAUMA, 70 MMB and'sard Krffing was conmitted by STEPHANIE LEE KING while engage an the perpetration of, or 1 to perpetrate AGGRAVATED CHILD E BY WILLFULLY TORTURING MALICIOUSLY PUNISHING KNOWIN [AND IN SO DOING CAUSING BODILY HARM, PERMANENT DISABILITY, OR PERMANENT DISFIGUREMENT TO A CHILD LESS THAN EIGHTEEN YEARS OF AGE, contrary to Sec- tions 827 03(2), 782 04(1)(a)2, Florida Statutes, COUNT II The Grand Jurors of the State of Florida. inquiring in and for the body of the County of Brevard, upon their oaths do charge that in Brevard County, Florida, on the 9th day of June, 1997, STEPHANIE LEE KING, did then and there commit AGGRAVATED CHILD ABUSE cn 2 child years of age, BY willful torture of BEEBE in that KING did by her willful act, omission, or neglect cause cooc52 Filing 74282889 STATE VS KING STEPHANIE LEE (05-1997-CF-014805-AXXX-XX4 unngcessazy ox unjustsfiable pain or suffering, BY malicious punishmen WA 6 of BY knowing orwillful abuse of Ki which caused/ 4% a MBE Contrary to Section 827 03(2), Florada Statutes, and against the peace and dignity of the State of Florida. Ue ee “Foreman ‘of the Grand Jury I, Meryl L Allawas, hereby certify that I have, as authorized and re- NORMAN R WOLFINGER STATE ATTORNEY baal vad Mazyl L Allawas, Designated Assistant State Attorney for the Eighteenth Judicial Circuit of Florida, Prosecuting for said State Florida Bar Number 0376728 cacds3 Filing 74282889 STATE VS KING STEPHANIE LEE (05-1997-CF-014805-AXXX-XX,e e \\ IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT, IN AND FOR BREVARD COUNTY, FLORIDA CASE NO 97-14805-CF-A-M STATE OF FLORIDA, Plaintiff, vs STEPHANIE LI E KING, Defendant VERDICT We, the jury, find as follows, as to Count I, as to the defendant in this case (check only one) X__A) The defendant 1s guilty of First Degree Felony Murder B) The defendant ts guilty of Murder in the Second Degree C) The defendant 1s guilty of Murder in the Third Degree Sandy Crawford _ D) The defendant 1s guilty of Manslaughter Eero cone Pos 1 ames 2 Twst Doo ‘Ree 000 Sew 000 ooo exose 000 E) The defendant 1s not guilty Ris” G00 in Tax 000 So say we all this 29°" day of Fe brugey —, 2000, n Titusville, Brevard County, Flonda a CoHenpe Tutte FOREPERSON a NS OPEN cae on ge Time ETS ANH @ROVEROAD, CLERKT oooeas ‘Srcur + COUNTY COURT v o Fring 74262069 wnate e iT IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT, IN AND FOR BREVARD COUNTY, FLORIDA CASE NO 97-14805-CF-A-M STATE OF FLORIDA, Case #25 1997 CF x . STEPHANIE LEE KING, Defendant FN 2000067724. OTTO ONON VERDICT OR BocKPee 4150 7 0498 We, the jury, find as follows, as to Count If, as to the defendant in this case (check only one) __X__A) The defendant is guilty of Aggravated Child Abuse __B) The defendant 1s guilty of Attempted Aggravated Child Abuse C) The defendant 1s guilty of Child Abuse D) The defendant 1s not guilty a So say we all this 27 “day of _/ebrwzey _, 2000, n Titusville, Brevard County, Florida henge Tee FILEO IN OPEN COURT FOREPERSON Date 2-29-00 Time ALS ifm SANDY CRAWFORD, CLERK CIRCUIT AND COUNTY COURT 9” theres oe cooee? a 45 Filing 74282889 STATE VS KING STEPHANIE LEE 05-1997-CF-$4005-AXCKX,ICFN 2000060059 04-18-2000 05 02 am OR BookiPage 4150 / 3981 7 INTHE CIRCUIT COURT, EIGHTEENTH JUDICIAL CIRCUIT, BREVARD COUNTY, FLORIDA IN THE COUNTY COURT, BREVARD COUNTY, FLORIDA DIVISION CASE NUMBER cn x JUDGMENT > CRIMINAL ‘SUDGMENT/ORDER OF PROBATION 91-14805-CEK 7 GRIMINAL SUDGMENTIORDER OF COMMUNITY coNTROL [aco _) TRAFFIC This, ayy ot PLAINTIFF DEFENDANT : eee ow STATE OF FLORIDA we cuenK oF counts osrs no 9)4¢/.3up. L 2. ordi labbebran. DC ) PROBATION VIOLATOR “| RESENTENGE =) Gommuntty CONTROL wouren cy | AMENDED As To 2 fermat | ten is & Mino Court was opened with the Honor ey leper, a nr and in attendance | State Attorney ree Vi ens Court Reporter | The dofendany, Stephanie L L hing , being Se before the’ ourt represented by RE sar of record, and having x Been tned and found guity > by yury_\_ by court of the following erimets} Entorad a plea of guity to the following crimes) = Entered a ples of Solo‘contendere to the Tolownng camels) ~~ | ‘COUNT CRIME a OFFENSE STATUTE DEGREE | NUMBERIS), og.came ZL First degree Eeltny by under I OF Bee ZIE— Aggravated —Onld Abuse ero EZ | |i THE (1 PROBATION /”_) COMMUNITY CONTROL PREVIOUSLY ORDERED IN THIS CASE IS REVOKED [1] THE PRIOR ADJUDICATION OF GUILT IN THIS CASE IS CONFIRMED and no cause having been shown why the defendant should not be adjudicated guilty (2 IT Is ORDERED THAT ADJUDICATION OF GUILT BE WITHHELD ‘K IT IS ORDERED THAT the defendant 1s hereby ADJUDICATED GUILTY of the above crime(s) 77 and having been convicted or found guilty of, or having entered a plea of nolo contendre or guilty, regardless of adjudication, to attempts or offenses relating to sexual battery (ch 794), loved and lascious conduct (ch 800), of murder (s. 782 041, aggravated battery (s_ 784.045), caacking (s 812 133), or home invasion robbery (s 812 135) or any other offense specified in section 943 325, the defendant shall be required to submit bigod snecimens DONE AND ORDERED par CO0C30~ BREVARD COUNTY, FL suse] 9-99 saw gy DISTRIBUTION ORIGINAL COURT FILE“ T/ DEFENDANT TT PROBATION & PAROLE art Filles 19282889 LI SHERIFF STATIERRNGRUSTTORNEXIRD Led | STATE ATTORNEY 64.9687. PERABBE RNS txhibt Fwi 2000069059 a oReBookiPage 4150 s 3983 CASE NUMBER ‘DEFENDANT SENTENCE Stéphanie _L. King 91-148 05 CFA | ~ (as To COUNTIS) = ) wetnioy pong poo infor ne sour, conned yh denn arn faa, {OSS and having been adjudicated guilty herein, and the court Bang Giver the dalendon ar SppORUTAY bo herd ond to offer mettre n migaton of santenc, and Show eausn why the defendant chauld net bo eantenced as prowded by lw, and ho cause being shown, C1 and the court having on deferred imposition of sentence until this date (date) I and the court having previously entered a judgment n this case on _ (eek ow resentences the defendant (date) 1] and the court having placed the defendant on probation/community contro! and having subsequently revoked the defendant's probation/community control IT IS THE SENTENCE OF THE COURT that & The defendant pay a fine pursuant to section 775 083, Florida Statutes, plus a 5% surcharge pursuant to section 938 04 Florida Statutes, as indicated on the Fine/Costs/Fee Page DX the defendant is hereby committed to the custody of the Department of Corrections 5 The defendant is hereby committed to the custody of the Shentf of Brevard County, Florida (2 The detendant i sentenced as a youthful offender in accordance with section 958 04, Fonda Statutes inapplicable) ‘TO BE IMPRISONED (check one, unmarked sections a JX For a term of natural ite (1 For a term of [7] Said SENTENCE SUSPENDED for a period of subject to conditions set forth in this order IF “SPLIT” SENTENCE, complete the appropriate paragraph iJ Followed by a period of ‘on [2 probation “| community control under the supervision of the Department of Corrections according to the terms and conditions of supervision set forth in the order entered herein “| However, after serving a period of imprisonment in the Department of Corrections, the balance of the sentence shall be suspended and the defendant shall be placed on [_] probation (community control for a period of __ under supervision of the Department of Corrections according to the terms and conditions of ©] probation] community control set forth in the order entered herein In the event the defendant s ordered to serve additional split sentences, all incarceration portions shall be satisfied | [before the defendant begins service of the superusion terms . 000062 | ayaa, | Fling FES A89 STATE vs Kif@QSreRHARE LEE (05-1997-CF-014805-AXXX-X °00008088 Srcsuse 4150 / 3084 DEFENDANT CASE NUMBER SENTENCE Stephanie L. King 9144 B0S-CON J (as To countis) I] > The defendant, being,personally before this court, accompanied by the defendant's attorney of record, Michael Bross | and having been adjudicated guity herein, and the court iaving given the defendant an opportunty to be heard and to offer matters in mtigation of sentence, and to show cause why the defendant should not be sentenced as provided by law, and no cause being shown, and the court having on deterred imposition of sentence unt this date (dated {Check applicable erosion) G and the court having previously entered @ judgment in this case on now resentences the defendant (dated [7 and the court having placed the defendant on probation/community control and having subsequently revoked the defendant's probation/community control IT IS THE SENTENCE OF THE COURT that OO The defendant pay a fine pursuant to section 775 083, Florida Statutes, plus a 5% surcharge pursuant to section 938 04 Florida Statutes, as indicated on the Fine/Costs/Fee Page Ste defendants hereby committed tothe custody of the Shen of Grevrd County, Fonda ‘The defendant 1s sentenced as a youthful offender in accordance with section 958 04, Florida Statutes [TO BE IMPRISONED (check one, unmarked sections are applicable) For @ term of natural Ife Urorermet 995 Aa, pe (Cl Said SENTENCE SUSPENDED for a period of subject to conditions set forth in this order IF “SPLIT” SENTENCE, complete the appropriate paragraph — Followed by a period of ‘on [1 probation (1 community control under the supervision of the Department of Corrections according to the terms and conditions of supervision set forth in the order entered herein C1 However, after serving a period of imprisonment in the Department of Corrections, the balance of the sentence shall be suspended and the defendant shall be placed on | probation (2 community control for a period of under supervision of the Department of Corrections according to the terms and conditions of L] probation [] community control set forth in the order entered herein Inthe event the defendant ordered to serve ional sit sentences, i nearoration portone shal be etsied oa 000083 Fling FRB STATE Vs KiRARPrERHARIE LEE. 05-1997-CF-014005-AXXXXKHFN 2000069059 oR BookiPage 4150 / 3985 DEFENDANT Stephinie L, King | orwer provisions 01-MBDS CEA ‘CASE NUMBER RETENTION OF JURISDICTION JK oniainat JAIL CREDIT [1 Consecutive/Concurrent ‘AS TO OTHER CASES (as To count Ly p> The Court retains junsdiction over the defendant pursuant to section 947 16(3), Florida Statutes (1983) Its further ordered thatthe defendant shal be alowed a oral ot 49S days credit for such time incarcerated before imposition of this sentence It is further ordered that the sentence imposed for this count shall run consecutwe to XX concurrent with (check one} the sentence set forth in count {@ (4 of this case above It is further ordered that the composite term of all sentences imposed for the ‘counts specified in this order shall run [) consecutive. concurrent with any active sentence being served — specific sentences 000GG3 TAW aa BEV “t1196) Filing 74282889. STATE VS KING STEPHANIE LEE (05-1997-CF-014805-AXXX-XX,W349 (REV_10198), Fi rune se oes we for payne maton @ IN THE CIRCUIT COURT, EIGHTEENTH JUDICIAL CIRCUIT, _BREVARD COUNTY, FLORIDA 50) 3986! IN THE COUNTY COURT, BREVARD COUNTY, FLORIDA aeeeee oe - DIVISION CASE NUMBER A’ cainina ORDER FOR FINE/COSTSIFEES FIC (1 yuvenive 97 455S-CER PLAINTIFF PSEA IFILED IN OPEN COURT ore « [Stephaae L King Moe te ‘Social SECURITY NO a topm |SANDY CRAWFORD (CLERK OF COURTS la pe [The DetendantiGhad w hereby ordered to pay the folowing sume (W checked) [_] es @condwon of probation | Jmnposed as 8 ewillen ‘ADDRESS 1 on or btore Cet the rae of 8 {Clper weeklmonthioher FLORIDA FORMER STATUTE FS. AMOUNT FUND 775.083 ‘ fine 93304 96025. $ 5% Additonal Cost 775.0035 ‘ COptonal Fn for Canes Compansaton Trust Fund 0S pit us T7598 93803 90201) 95000 Cranes Compensation Trost Fund watveo Woved By The Court Pusvant to 960 2012) (Reason) soot 843.2510) 8 300 ‘aaonal Court Cast Clearing Test Fund 99615 949.2513) $200 Craanal Justeo Education for Local Goverament 939.08 939015 $2000 Handicapped and Ey Victim (Goel Revenue Fund e311 7750838 10% Surcarge on Hendespped early Vict (General Rerene Fund), | 999 05 274455 $5000 oral Government Cemnal Just Tras urd | 998.05 273485 $ 20000 Local Government Crnnal Juste Tras Fund 938.27 Investigative AgencProsecuton Casts 99918 Curt Casts for Court Facktes Public Detender Lin Judgment Brevard Polce Tsing and Cariiaton Account Operating Trust Fund of Department of Law Enforcement County Drug Abuse Trust Fund (Distnbuted Pursuant To 899 16(2H 4 ‘ 5 ‘ $ ‘ ‘ 3 938 29 2756 $ 89.520 laws of Fonda) 936.25 8991318N8) $ 10000 93823 899 TSIBIA) ¢ $ $ ‘ : ’ $ $ $ 5 OOnoOooOoOoOooOoOR00b0o0oo0oo08 on000 893 135 Mandatory Minimum for Traffickng 316 19213) 500 Emergency Mota! Seruces Trust Fund 93807 316 1996NE $2500 Emargency Medica! Seruces Trust Fund 99807 318 199/6NE) $6000 [Bram and Spnal Cord InuryRabitaton Trust Fund 99807 316 199/68) $6000 minal Justes Standards and Trang Trust Fund 93813 s2g017 $ 1500 ‘cohol 8 Orug Conwetions Misdemeanor Charges (Dept of HRS! 93817 3.00 Joven Juste Assessment Center 2752 4000 Polite Ostend Application Fee | 938 08 2000 Game Stopper Trust Fund Cotter i Restitution s ordered —([)_ Amount Resorved (1) in accordance with attached order li fesitutons aot ded) Net ppt] Out tnancal sous ofthe defendant] Osta ~ O0TSS Statutory costs reno asasnd bythe DONE AND ORDERED Soar | OE BREVARD COUNTY, eA Ag_ ALORIRA ea 1224. soe Oe ¢ 0059 ‘oR BoowPage 4150 / 3987 4 h DEFENDANT | CASE NUMBER Stephanie L. King In the event the above sentence is to the Department of Corrections, the Shentff of Brevard County, Florida, 1s hereby ordered and directed to deliver the defendant to the Department of Corrections at the facility designated by the department together with a copy of this judgment and sentence and any other documents specified by Florida Statute SIGNATURE PAGE The defendant in open court was advised of the right to appeal from this sentence by filing notice of appeal within thirty days from this date with the clerk of this court and the defendant's right to the assistance of counsel in taking the appeal at the expense of the state on showing of indigency In imposing the above sentence, the court further recommends THE COURT HEREBY ORDERS THE DEFENDANT released on Probation Report to Probation.) within 24 hours _. within 72 hours of release [> released on Community Control Report to Community Control wnthin 24 hours - within 72 hours of release X, remanded to the Brevard County Detention Facility, dischargedireleased, 97-4805 “CFA DONE AND ORDERED TE DATE BREVARD COUNTY, supce | 5 FLORIDA 2°29-Co HY doe 7 : an : Page of 000066 Filing 74282889 STATE VS KING STEPHANIE LEE (05-1997-CF-014805-AXXX-XX,