MUSA SHABAZZ, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Musa Shabazz petitioned for relief based on ineffective assistance of appellate counsel for failing to raise a jury instruction issue on his direct appeal of an attempted first-degree murder conviction. The court found appellate counsel ineffective but remanded for a new appellate proceeding rather than a new trial.
Appellate counsel was ineffective for failing to raise the jury instruction issue in light of controlling precedent (Davis and Cabrera) existing at the time the brief was filed. However, the appropriate remedy is a new appellate proceeding to review the issue, not immediate reversal and new trial.
[1] Strategic decisions made by trial counsel, after considering alternative courses of action, do not constitute ineffective assistance of counsel if those decisions were re…
[2] To establish ineffective assistance of counsel, a defendant must demonstrate both deficient performance by counsel and prejudice resulting from that deficiency.
Previewing 2 of 6 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 agree with petitioner that his appellate counsel was ineffective for failing to raise the jury instruction issue on direct appeal in light of the existence of cases such as Davis and Cabrera at the time the brief was filed.”
Court's finding that counsel's performance was deficient under the first prong of the ineffectiveness test.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceShabazz was convicted of attempted first-degree murder. He appealed, and appellate counsel raised issues about insufficient evidence, jury instruction…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Jury Instruction Error cases and more on FLexlaw
PER CURIAM.
After his conviction for attempted first-degree murder, an appeal was taken to this court of the judgment and sentence of Musa Shabazz. Counsel argued on appeal that the verdict was not supported by the evidence, a jury instruction issue, and the existence of an error in the judgment regarding the degree of the crime. This court remanded the cause to the trial court for correction of the judgment but otherwise affirmed. Shabazz v. State, 931 So. 2d 224 (Fla. 1st DCA 2006).
Shabazz now raises a claim of ineffective assistance of appellate counsel, arguing that counsel failed to raise another jury instruction issue which would have entitled him to a new trial.
The jury was instructed that it should find the defendant guilty if it found the state proved that he and/or a co-defendant acted in a certain manner. Appellate courts of this state have found this type of jury instruction to be reversible and fundamental error. Davis v. State, 895 So. 2d 1195 (Fla. 2d DCA 2005); Cabrera v. State, 890 So. 2d 506 (Fla. 2d DCA 2005).
This court, however, has never directly addressed the issue and, shortly after petitioner’s direct appeal became final, the Fourth District decided Garzon v. State, 939 So. 2d 278 (Fla. 4th DCA 2006).
There, the court disagreed with the “fundamental and reversible” approach to the problem taken by Davis and Cabrera and found that the appellant was not entitled to relief under the circumstances of his offense and trial. Conflict was certified and the cause is now before the Florida Supreme Court in case number SC06-2235.
The issues for this court are: “first, whether the alleged omissions [of appellate counsel] are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.” Pope v. Wainwright, 496 So. 2d 798, 800 (Fla.1986).
We agree with petitioner that his appellate counsel was ineffective for failing to raise the jury instruction issue on direct appeal in light of the existence of cases such as Davis and Cabrera at the time the brief was filed.
However, we find that the appropriate remedy is a new appellate proceeding to review the issue, rather than ordering a new trial at this time. See Barnes v. State, 932 So. 2d 589 (Fla. 5th DCA 2006); Granberry v. State, 919 So. 2d 699 (Fla. 5th DCA 2006); Fair v. Crosby, 858 So. 2d 1103 (Fla. 4th DCA 2003).
Accordingly, a copy of this opinion will be provided to the clerk of the circuit court, who shall treat it as a notice of appeal, upon issuance of mandate in this cause. If Shabazz qualifies for appointed counsel, the trial court shall appoint counsel to represent him on appeal.
PETITION GRANTED.
BROWNING, C.J., WOLF, and KAHN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Evangelista Lopez v. State, 68 So. 3d 332 (Fla. 5th DCA 2011)…berry, “there are cases that hold that appellate counsel is ineffective for failing to raise favorable cases decided by other jurisdictions during the pendency of an appeal, which could result in a reversal.” 919 So. 2d at 701; see Shabazz v. State, 955 So. 2d 57 (Fla. 1st DCA 2007) (holding appellate counsel ineffective for failing to raise favorable cases from other districts in Florida even though controlling law in district in which appeal was heard was unfavorable); Ortiz v. State, 905 So. 2d 1016 (Fla.…
-
Dill v. State, 79 So. 3d 849 (Fla. 5th DCA 2012)…e counsel is ineffective for failing to raise favorable cases decided by other jurisdictions during the pendency of an appeal, which could result in a reversal.” Granberry v. State, 919 So. 2d 699, 701 (Fla. 5th DCA 2006); see also Shabazz v. State, 955 So. 2d 57 (Fla. 1st DCA 2007) (holding appellate counsel ineffective for failing to raise favorable cases from other districts in Florida even though controlling law in district where appeal heard was unfavorable); Ortiz v. State, 905 So. 2d 1016 (Fla. 2d DCA…
-
Pierce v. State, 121 So. 3d 1091 (Fla. 5th DCA 2013)…in the district had approved the instruction, when the instruction had been found fundamentally erroneous in another district and conflict between the two districts would have allowed defendant to seek relief in the supreme court); Shahazz v. State, 955 So. 2d 57 (Fla. 1st DCA 2007) (holding appellate counsel ineffective for failing to raise favorable cases from other districts in Florida even though controlling law in district in which appeal was heard was unfavorable); Ortiz v. State, 905 So. 2d 1016 (Fla.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pope v. Louie L. Wainwright, 496 So. 2d 798 (Fla. 1986)
- Zamir Garzon and Ray C. Balthazar v. State, 939 So. 2d 278 (Fla. 4th DCA 2006)
- Cabrera v. State, 890 So. 2d 506 (Fla. 2d DCA 2005)
- Fair v. Crosby, 858 So. 2d 1103 (Fla. 4th DCA 2003)
- Granberry v. State, 919 So. 2d 699 (Fla. 5th DCA 2006)
- Satahoo v. State, 895 So. 2d 1195 (Fla. 3d DCA 2005)
- Sherrey Davis v. State, 895 So. 2d 1195 (Fla. 2d DCA 2005)
- Musa Shabazz v. State, 931 So. 2d 224 (Fla. 1st DCA 2006)
- Barnes v. State, 932 So. 2d 589 (Fla. 5th DCA 2006)
- Bailey v. State, 931 So. 2d 224 (Fla. 1st DCA 2006)