5th District Court of Appeal
Case No. 5D19-880
December 2020

Anita Jane Smithey vs. State of Florida

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Case Details


In a 2-1 decision, the majority reversed a lower court's ruling refusing Smithey's appeal for her conviction of second-degree murder. They overturned her conviction and the charge was sent back to the lower courts for a new trial. The ruling reads:

"This is clearly a case in which counsel’s representation fell so far below the constitutional guarantee to effective assistance that Smithey is entitled to a new trial, despite the error being isolated."

The charges were overturned because the majority agreed that Smithey's lawyers did not provide her with a proper defense.

During a police interview, she asked for her right to remain silent. The detective improperly continued the interview. Statements she made after that were withheld from evidence by the trial judge. The only way they could be used as evidence was if the Defense introduced something to mislead the jury on the topic.

In the withheld statements, she says she stabbed herself because she was afraid she would not be believed. The majority argue Smithey's lawyers made two unforced errors:

  • The Defense called an Expert Witness to testify that Smithey's wounds were not self-inflicted. Because of this, the Prosecutor asked the trial judge to enter the withheld statements into evidence. He did not at this time.
  • The Defense played the 911 call in court. In the call, Smithey said her husband had stabbed her. This time, the trial judge ruled that the withheld statements could be admitted into evidence.

Her Defense say the 911 call was helpful, but not essential to their case. They didn't discuss the potential risk of using it. Neither checked with the trial judge to see if it would be an issue. Her Defense says keeping the statements out of the trial was critical to their strategy and that the jury hearing the statements was "devastating".

The majority says her lawyers did not always make poor decisions, but these decisions in particular could not have been a strategic choice. The majority says the statements were likely the determining factor to decide her guilt. This is why they reversed her conviction and sent it back to the lower court for a new trial.

Dissent: Judge Traver

"... if counsel’s strategic decision was unsound, this error was isolated and not egregious, especially when viewed in context. Stated differently, some errors are so serious that nothing else matters. This is not one of those cases."

Traver points out that other than one single decision, Smithey's Defense lawyers were excellent. He says that even though they failed, the decisions made were strategic:

  • Calling the Expert Witness to say her cuts were not self-inflicted was strategic. The medical examiner had already testified that her cuts were self-inflicted. The Defense needed to lessen the impact of that testimony.
  • Introducing the 911 call was strategic because it revealed her emotional state to the jury. It also had a timestamp, which contradicted the Prosecutor's theory that she waited to call 911.
  • When the use of the 911 call caused the withheld statements to entered into evidence, Smithey's lawyers did not stay silent. Even though they were unsuccessful, they tried to convince the judge that the decision was wrong.
  • Although they didn't expect the ruling, her lawyers did an excellent job afterward. The statements in question included Smithey saying she had stabbed herself, but they also included her saying that she did not stab herself. The statements also revealed coercive techniques used by her interrogator. Smithey's lawyer pointed this out, along with her fragile state, in closing arguments.
Read the full ruling


Anita Smithey was convicted of second-degree murder in the 2010 shooting death of her estranged husband.

Smithey alleges: She was living separately from her estranged husband, but they continued a sexual relationship. On May 4, 2010, she asked him not to come to her home, but he came anyway. When he arrived, they had consensual sex. Afterward, he wanted to continue having sex and she did not. He sexually assaulted her while stabbing and beating her. She shot him twice in self-defense. He died of his injuries.

After calling 911, she was taken to the hospital for a sexual assault exam and was treated for bruising and superficial wounds. After that, she was taken in for questioning.

Post-Appeal Update: After Smithey's conviction was overturned, she faced a new trial. She pled no contest in 2021 to second-degree murder. She was sentenced to time served, 10 years of probation, and $41,000 in restitution and costs.

The original trial is featured in Season 28, Episode 29: "The Verdict" (2015) of 48 Hours.

Related Articles

Appeal Decision: Appeal court orders new trial for Oviedo woman convicted of killing husband (Orlando Sentinel, 2021)

Summary and Final Results: Oviedo woman convicted of shooting husband takes deal in murder case (WESH2, 2021)

Note: Some resources, like the Orlando Sentinel and Florida Today, have a limited number of free articles before putting up a paywall.

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