
    Stephanie KING, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2381.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2008.
    Motion for Certification Denied July 11, 2008.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Stephanie King [“Defendant”] has appealed the trial 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 trial court’s denial of ground one, but reverse and remand for an evi-dentiary 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 trial, Defendant was 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 convictions in King v. State, 790 So.2d 1253 (Fla. 5th DCA 2001). Defendant then filed a motion for post conviction relief, pursuant to Florida Rule of Criminal Procedure 3.850.

During the trial, the trial court instructed the jury that “[t]he underlying felony for first-degree felony murder is 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] willfully tortured or maliciously punished or knowingly or willfully abused [Victim] and in so doing caused great bodily [sic], permanent disability or permanent disfigurement to the child, [Victim].
2. Victim was under the age of eighteen years as alleged in the Indictment, a child of two years of age.

The trial 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 relief, Defendant argued that her trial counsel, A. Michael Bross [“Bross”], was ineffective for failing to object to the standard jury instruction for aggravated child abuse used in Defendant’s trial, which improperly defined the term “maliciously” as it relates to the elements of the charge.

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 trial court to give the standard instruction defining “maliciously” because the correct definition is: “with spite, ill will, 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 turn, taken the definition from the Florida Supreme Court’s opinion in State v. Gaylord, 356 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 definition 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 asked for the change in jury instruction to spite, ill will, hatred, or evil intent in accordance with the Freeze case,” but that he did not do that.

The trial court denied Defendant relief as to ground one, concluding that, because her case was final at the time Reed was decided, it could not retroactively 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 is 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 is 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 trial. We therefore expressly limit retroactive application of our decision to nonfinal 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 is immaterial.

■The trial court gave the standard jury instruction approved by the Florida 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 justice if its decision was retroactively 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 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 concerning the plea.

AFFIRMED in part; REVERSED in part; and REMANDED.

ORFINGER and EVANDER, JJ., concur.

GRIFFIN, J., dissenting, with opinion.

GRIFFIN, J.,

dissenting.

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 ill will, hatred, spite, and evil intent.

Id. at 314. (Emphasis added). Inexplicably, however, as was later discussed in 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 legal justification or excuse.”

Eventually, in Reed, , the Supreme Court confirmed that the standard jury instruction was wrong and that malice should be defined as “ill will, 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 inaccurate standard jury instruction on the definition of malice was used in trials where the malice element was disputed. Id. Although Reed was decided by the Florida 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, 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 Kang’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 trial 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 client. 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 is not an inflexible principle. 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 trial judge always bears the responsibility of accurately instructing the 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 failing to object to the standard instruction when the court has previously upheld the validity of the instruction but, as far as I 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 point 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.

I do appreciate the majority’s concern that this analysis violates the spirit 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, is 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 its decision on the huge number of cases that were tried using the standard instruction and which were long since final.

I disagree that Mr. Bross’s knowledge of the correct definition is 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 so much as object to the standard instruction’s definition of “malice,” King would be in the same posture as Mr. Young, who got a new trial. Because Mr. Bross did not object, King has no remedy. It is an uncomfortable irony that King would likely have been able to succeed on this ineffective assistance of counsel claim but for the Supreme Court’s issuance 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.

I would hold that the trial court erred in failing to grant King’s 3.850 motion for post-conviction relief based on this claim of ineffective assistance of trial counsel. 
      
      . In her direct appeal, the sole issue raised by Defendant was that "the trial court abused its discretion by preventing defense counsel from questioning prospective jurors on the effect, if any, that viewing graphic autopsy photographs might have on their ability to be fair.” King v. State, 790 So.2d 1253, 1254 (Fla. 5th DCA 2001).
     
      
      . 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.
     
      
      . 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.
     
      
      . In Thompson v. State, 759 So.2d 650, 655 (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.
     