ISAAC ROGERS, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Isaac Rogers petitioned for relief based on ineffective assistance of appellate counsel. The appellate court agreed that counsel was ineffective for failing to raise fundamental error regarding jury instructions on kidnapping, vacating the conviction and remanding for a new trial.
Appellate counsel was ineffective for failing to raise the fundamental error regarding jury instructions on unalleged alternative intent elements. The trial court's instruction on all four intent alternatives when only two were alleged constituted fundamental error requiring vacation of the conviction and remand for new trial.
[1] A trial court commits fundamental error by instructing the jury on alternate intent elements not alleged in the charging instrument.
[2] Appellate counsel is ineffective for failing to raise the issue of fundamental error in jury instructions, even in the absence of a trial objection.
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Join FLexlaw to unlock all legal intelligence“By instructing the jury on alternate intent elements that were not alleged in the amended information, the trial court committed fundamental error.”
Establishes that the trial court's instruction on unalleged alternative intent elements constitutes fundamental error in kidnapping cases.
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Join FLexlaw to unlock all legal intelligenceRogers was charged with armed kidnapping among other offenses. The amended information alleged kidnapping with intent to commit robbery and/or carjack…
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[*640] PER CURIAM.
Isaac Rogers presents a timely claim of ineffective assistance of appellate counsel. We agree that petitioner’s appellate counsel was ineffective for failing to raise an issue of fundamental error in the jury instructions, and therefore grant the petition.
Among other offenses, Rogers was charged with armed Mdnapping. Kidnapping is defined in section 787.01(l)(a), Florida Statutes (2003), as follows:
The term kidnapping means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:
1. Hold for ransom or reward or as a shield or hostage.
2. Commit or facilitate commission of any felony.
3. Inflict bodily harm upon or to terrorize the victim or another person.
4. Interfere with the performance of any governmental or political function.
The amended information alleged that Rogers committed the kidnapping offense with the intent to commit robbery and/or carjacking, but the jury was instructed on all four of the alternate intent elements set forth in the statute, and thereafter returned a general verdict finding Rogers guilty of armed kidnapping. By instructing the jury on alternate intent elements that were not alleged in the amended information, the trial court committed fundamental error. See, e.g., Debose v. State, 920 So. 2d 169 (Fla. 1st DCA 2006); Eaton v. State, 908 So. 2d 1164 (Fla. 1st DCA 2005); Braggs v. State, 789 So. 2d 1151 (Fla. 3d DCA 2001). Despite the absence of an objection at trial, petitioner’s appellate counsel was ineffective for failing to raise this issue on appeal. See Hodges v. State, 878 So. 2d 401 (Fla. 4th DCA 2004).
Accordingly, we grant the petition alleging ineffective assistance of appellate counsel, vacate petitioner’s armed kidnapping conviction, and remand for a new trial on that count. We further direct the trial court to consider on remand whether the outcome of the kidnapping charge necessitates resentencing on the other offense for which petitioner was convicted, and if so, to resentence petitioner accordingly.
KAHN, C.J., BARFIELD and ALLEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Cogbill v. State, 940 So. 2d 537 (Fla. 1st DCA 2006)…8 So. 2d 422 (Fla. 1st DCA 2008). He further relies on authorities holding that despite the absence of a timely objection by trial counsel, appellate counsel will be deemed ineffective for failing to raise an issue of this sort. See Rogers v. State, 935 So. 2d 639 (Fla. 1st DCA 2006); Hodges v. State, 878 So. 2d 401 (Fla. 4th DCA 2004). In relevant part, section 893.135(l)(f) defines trafficking in amphetamine as follows: (f) 1. Any person who knowingly sells, purchases, manufactures, delivers, or brings in…
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Skinner v. State, 137 So. 3d 1164 (Fla. 3d DCA 2014)…n Florida does not support a new trial on all counts, when reversal is based on ineffective assistance of appellate counsel. See Rangel v. State, 132 So. 3d 844 (Fla. 2d DCA 2013); Evans v. State, 985 So. 2d 1105 (Fla. 3d DCA 2007); Rogers v. State, 935 So. 2d 639 (Fla. 1st DCA 2006). As such, Skinner only gets a new trial on the two attempted manslaughter counts. We therefore grant Skinner’s petition for writ of habeas corpus on this basis, decline to address all other issues raised in the petition, and rem…
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Rogers v. State, 25 So. 3d 636 (Fla. 1st DCA 2009)…e opinion). The mandate was issued on November 16, 2005. Thereafter, appellant filed a motion alleging ineffective assistance of appellate counsel, and this court vacated the armed kidnapping conviction and remanded for a new trial. Rogers v. State, 935 So. 2d 639, 640 (Fla. 1st DCA 2006). Upon remand, the State entered the nolle prosequi of the armed kidnapping charge. On June 5, 2007, a judgment was entered without any further resentencing. On February 9, 2009, appellant filed the instant rule 3.850 motion…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Eaton v. State, 908 So. 2d 1164 (Fla. 1st DCA 2005)
- Braggs v. State, 789 So. 2d 1151 (Fla. 3d DCA 2001)
- Hodges v. State, 878 So. 2d 401 (Fla. 4th DCA 2004)
- Debose v. State, 920 So. 2d 169 (Fla. 1st DCA 2006)