For what may be the first time in Utah, a criminal conviction has been overturned based on contentions the defendant was ineffectively represented at trial by an attorney.

The case, in the Utah Court of Appeals, involved a Vernal cowboy convicted of aggravated assault for shooting his partner in the foot with a .45-caliber handgun.The three-judge panel, in its decision released Monday, overturned the 1987 8th District conviction of Joseph Moritzky, 40, on the grounds his trial lawyer failed to request a jury instruction that probably would have resulted in a different verdict.

Appeals Judge Gregory Orme, writing for the unanimous court, indicated the ruling may be a first in Utah.

"On appeal, defendant must overcome the strong presumption that his counsel's assistance was adequate," Orme said. "The formidable nature of this burden is demonstrated by the fact that the parties have been unable to draw our attention to even a single reported Utah case where a criminal conviction was actually overturned on the basis of ineffective assistance of counsel."

The court found Moritzsky was denied his Sixth Amendment right to a fair trial and emphasized that effective legal representation is an important aspect of that constitutional guarantee.

"Appellate courts must review each case carefully to prevent the infrequent meritorious claim from being reflexively swept into the tide of affirmance by the chronicles of probability," Orme said.

An eight-person jury convicted Moritzky of aggravated assault in the April 1, 1987, shooting of Gary Olson, Vernal, a partner in Moritzky's horse-breaking venture.

Judge Dennis Draney on Aug. 27, 1987, sentenced Moritzky to a suspended 5-year prison term, one year in jail and 18 months probation.

Moritzky appealed, arguing the shooting was justified because he was defending his mobile home against Olson, following an argument over a horse.