LAWRENCE C. PERMENTER, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Lawrence Permenter seeks a new appeal, claiming his appellate counsel was ineffective for failing to raise as fundamental error an instructional issue regarding the 'forcible felony exception' to self-defense. The court grants the petition for a new appeal, finding the appellate counsel had reason to raise the jury instruction issue even without a contemporaneous trial objection.
The court grants Permenter's petition and orders a new appeal. The court finds that the forcible felony instruction may violate precedent established in Giles v. State, and appellate counsel had reason to raise this issue on appeal even without contemporaneous trial objection because such errors can constitute fundamental error.
[1] An instruction that prevents a jury from finding a killing justified if the defendant was attempting to commit, committing, or escaping after the commission of aggravated…
[2] An appellate attorney may have reason to raise an issue concerning a forcible felony instruction on appeal, even without a contemporaneous objection, if the instruction m…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We have previously held that such an instruction could be considered fundamental error and, thus, raised on direct appeal without a contemporaneous objection.”
Establishes that appellate counsel should have been aware that forcible felony instructions can be raised as fundamental error without trial-level objection.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePermenter was charged with second-degree murder. He claimed he acted in self-defense after the victim threatened him by displaying a firearm in his wa…
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PER CURIAM.
The petitioner, Lawrence C. Permenter, claims ineffective assistance of appellate counsel for failing to raise, as fundamental error, an issue concerning the so-called “forcible felony exception,” which negated his claim of self-defense. See Giles v. State, 831 So. 2d 1263, 1265 (Fla. 4th DCA 2002); Zinnerman v. State, 942 So. 2d 932, 933 (Fla. 5th DCA 2006). We have previously held that such an instruction could be considered fundamental error and, thus, raised on direct appeal without a contemporaneous objection. Rich v. State, 858 So. 2d 1210 (Fla. 4th DCA 2003).
The limited record before this court shows Permenter was charged with a single count of second-degree murder. Per-menter claimed he acted in self-defense after the victim threatened him by showing a firearm in the victim’s waistband. The judge instructed the jury on self-defense and used the forcible felony instruction that prevented the jury from finding the killing justified if Permenter “was attempting to commit, committing, or escaping after the commission of aggravated assault.” This instruction, on its face, may be exactly what Giles prohibits and, thus, Permenter’s appellate attorney had reason to raise this issue on appeal, even without a contemporaneous objection.
In accordance with Fair v. Crosby, 858 So. 2d 1103 (Fla. 4th DCA 2003), we grant the petition and grant Permenter a new appeal concerning this issue alone. Id. at 1105 (“The fundamental nature of the error can be gleaned only from a review of the full record on appeal.”). Accordingly, this opinion shall be filed with the lower tribunal and treated as the notice of belated appeal of the judgment and sentence entered in L.T. case number 01-14126CF10A. Upon receipt, the clerk of the lower court shall certify a copy of this opinion to this court in accordance with Florida Rule of Appellate Procedure 9.040(g). The appeal shall proceed under a new case number, which shall be assigned upon receipt in this court of the certified opinion. All time requirements of the Florida Rules of Appellate Procedure shall run from the date of this opinion. If Permenter qualifies for appointed counsel, the trial court shall appoint counsel to represent him on appeal.
STONE, SHAHOOD and TAYLOR, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Furney v. State, 115 So. 3d 1095 (Fla. 4th DCA 2013)…that raised a claim of ineffective assistance of appellate counsel based on failure to raise this issue and ordered a belated appeal so the entire record could be reviewed to determine if fundamental error occurred. Permenter v. State (Permenter I), 953 So. 2d 647, 648 (Fla. 4th DCA 2007); Fair v. Crosby, 858 So. 2d 1103, 1105 (Fla.4th DCA 2003) (“The fundamental nature of the error can be gleaned only from a review of the full record on appeal.”). In reviewing the issue after Martinez, this court has found…
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Permenter v. State, 978 So. 2d 277 (Fla. 4th DCA 2008)…ommit, committing, or escaping after the commission of aggravated assault.... The jury found Permenter guilty of manslaughter. We previously granted Permenter’s petition alleging ineffective assistance of appellate counsel. See Permenter v. State, 953 So. 2d 647, 648 (Fla. 4th DCA 2007). Permenter now seeks a new trial, claiming fundamental error in the jury instruction. We affirm. We recognize that the instruction was erroneous because Permenter was charged with a single offense. The relevant jury instruc…
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Clark v. State, 23 So. 3d 1213 (Fla. 4th DCA 2009)…that raised a claim of ineffective assistance of appellate counsel based on failure to raise this issue and ordered a belated appeal so the entire record could be reviewed to determine if fundamental error occurred. Permenter v. State (Permenter I), 953 So. 2d 647, 648 (Fla. 4th DCA 2007); Fair v. Crosby, 858 So. 2d 1103, 1105 (Fla. 4th DCA 2003) (“The fundamental nature of the error can be gleaned only from a review of the full record on appeal.”). In reviewing the issue after Martinez, this court has found…
Authorities Cited
- Lamonda D. Giles v. State, 831 So. 2d 1263 (Fla. 4th DCA 2002)
- Rich v. State, 858 So. 2d 1210 (Fla. 4th DCA 2003)
- Fair v. Crosby, 858 So. 2d 1103 (Fla. 4th DCA 2003)
- Yolinda Wright Zinnerman v. State, 942 So. 2d 932 (Fla. 5th DCA 2006)