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Florida Third District Court of Appeal - Criminal Headnotes - February 28, 2018


Petition for writ of habeas corpus claiming ineffective assistance of counsel on appeal from conviction for second-degree murder.

The direct appeal was pending when the 1st District appeals court decided Montgomery v. State, 70 So. 3d 603 (Fla. 1st DCA 2009), finding that the trial court in that case had erred in giving the then standard jury instruction for manslaughter by act, because the instruction improperly contained an intent to kill element of the lesser included offense. The 1st District certified the question to the Florida supreme court, which ultimately ruled, in State v. Montgomery, 39 So. 3d 252, 260 (Fla. 2010), that the intent required was not to kill, but "to commit an act that was not justified or excusable."

In his petition for habeas corpus, the defendant argued his appellate counsel should have filed a supplemental brief after the 1st District certified the question, in order to preserve the claim pending the outcome in Montgomery.

The defendant had previously raised this argument in a post-conviction motion under Rule 3.850, which the trial court denied because the claimed error had been committed by appellate counsel, not trial counsel. The appeals court summarily affirmed in Marshall v. State, 56 So. 3d 11 (Fla. 3d DCA 2011). The defendant then filed a petition with the appeals court under Rule 9.141(d), which the court denied, despite the defendant's having moved to stay proceedings pending the Florida supreme court's disposition of Haygood v. State, 54 So. 3d 1035 (Fla. 2d DCA 2011), certifying the question whether it was error for the trial court to also submit, together with the erroneous instruction on manslaughter by act, an instruction on manslaughter by culpable negligence, where the evidence did not support such a finding.

Again, the Florida supreme court ultimately did rule, in Haygood v. State, 109 So. 3d 735 (Fla. 2013), that it was error to give the manslaughter by culpable negligence instruction under the circumstances.

In light of Haygood, the present petition alleged a "manifest injustice" arising from the ineffective assistance of appellate counsel. The appeals court determined, first, that the trial court erred in giving the manslaughter by culpable negligence instruction alongside the erroneous manslaughter by act instruction. The court then determined that the defendant's appellate counsel was ineffective in failing to raise the issue pending the outcome in Montgomery, citing a similar circumstance that led, though a similarly circuitous route, to a reversal and retrial in Nieves v. State, 184 So. 3d 1148 (Fla. 2d DCA 2015).

Finally, the appeals court found that it would be "manifestly unjust" to refuse the requested relief here, given that the court had refused to stay proceedings on the defendant's Rule 9.141(d) petition pending the supreme court's determination in Haygood.

Petition granted.