GRAY v. STATE (2008)

We conclude that the trial court erred in denying the defendant's motion for postconviction relief under rule 3.850 of the Florida Rules of Criminal Procedure.   The lawyer representing the defendant at trial failed to provide adequate assistance of counsel by neglecting to request a jury instruction on the illicit nature of the substance, which was then an element of the crime of possession of marijuana.   See Garcia v. State, 901 So.2d 788 (Fla.2005);  Scott v. State, 808 So.2d 166 (Fla.2002).   The record does not support the state's argument that the failure to request this instruction was a strategy.   Trial counsel did not testify that he consciously chose not to request the instruction.   Rather, it appears from the record that in retrospect he did not believe the instruction would have helped his client's case.   For these reasons, we reverse the order denying the postconviction motion and hold that the defendant is entitled to a new trial.

Reversed.

PER CURIAM.

WEBSTER, PADOVANO, and POLSTON, JJ., concur.