JOSE C. SANTIAGO, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Jose Santiago petitioned for relief on the ground that his appellate counsel was ineffective for failing to argue that the trial court committed fundamental error by using the conjunction "or" between his name and those of his codefendants in jury instructions on essential elements. The court granted the petition, finding appellate counsel ineffective under controlling precedent.
Appellate counsel was ineffective for not arguing that the jury instructions in question constituted fundamental error. The court granted Santiago's petition and instructed the trial court to appoint appellate counsel to file a brief addressing whether the jury instructions constituted fundamental error, requiring a full review of the record on appeal.
[1] Appellate counsel is ineffective for failing to argue that the use of the conjunction "or" between a defendant's name and those of codefendants in jury instructions const…
[2] A jury instruction that uses the conjunction "or" between a defendant's name and those of codefendants when outlining essential elements of the charged crimes may constit…
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Join FLexlaw to unlock all legal intelligence“As the State acknowledges, this case is controlled by Zeno v. State, 922 So.2d 431, 433 (Fla. 2d DCA 2006), wherein this court held that appellate counsel was ineffective in not arguing that the use of the conjunction "or" between Zeno's name and Zeno's codefen-dants' names constituted fundamental error.”
Establishes that the case is controlled by precedent requiring a finding of ineffective assistance of appellate counsel
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Join FLexlaw to unlock all legal intelligenceSantiago was convicted after jury trial of conspiracy to traffic in heroin and possession of heroin as a lesser-included offense of trafficking in ill…
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CASANUEVA, Judge.
Jose Santiago, in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), contends that appellate counsel was ineffective in failing to argue that the trial court fundamentally erred when it inserted the conjunction “or” between his name and those of his codefendants when instructing the jury on essential elements of the crimes of which he was convicted. The State concedes that Santiago is entitled to relief.
Santiago was convicted after jury trial of conspiracy to traffic in heroin and possession of heroin as a lesser-included offense of trafficking in illegal drugs.
This court affirmed Santiago’s judgment and sentences. Santiago v. State, 896 So. 2d 759 (Fla. 2d DCA 2005).
As the State acknowledges, this case is controlled by Zeno v. State, 922 So. 2d 431, 433 (Fla. 2d DCA 2006), wherein this court held that appellate counsel was ineffective in not arguing that the use of the conjunction “or” between Zeno’s name and Zeno’s codefen-dants’ names constituted fundamental error. Santiago was a codefendant of Zeno. In fact, in the preliminary statement in the initial brief in the direct appeal in Santiago, appellate counsel stated: “This brief has adopted the brief of Ariel Zeno’s,1 a codefendant at trial, due to a similarity of issues.” As in Zeno, we conclude that appellate counsel was ineffective for not arguing that the jury instructions in question constituted fundamental error. “A determination as to whether these instructions constituted fundamental error requires a full review of the record on appeal.” Id. at 433.
We therefore instruct the trial court, within thirty days from the issuance of the mandate in this case, to appoint an appellate attorney to file a brief limited to the issue outlined above. Appellate counsel shall, within thirty days of the appointment, file a new notice of appeal and reference this opinion in the notice of appeal.
Petition granted.
ALTENBERND and SALCINES, JJ., Concur. . Raymundo Zeno, Ariel Zeno's brother, was a codefendant of Santiago and Ariel Zeno. This court ultimately granted Raymundo Zeno a new trial, holding that the trial court’s use of the conjunction "or” between his name and those of his codefendants in instructing the jury on essential elements of the crimes charged constituted fundamental error. Zeno v. State, 910 So. 2d 394, 396 (Fla. 2d DCA 2005). We note that the Fourth District has certified conflict with Zeno. Garzon v. State, 939 So. 2d 278, 287 (Fla. 4th DCA 2006). The supreme court has accepted review of this conflict. 956 So. 2d 455 (Fla.2007).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Barnes v. State, 993 So. 2d 1012 (Fla. 2d DCA 2008)…me and that of his codefen-dant when reinstructing the jury1 on the essential elements of attempted carjacking. See Fla. R.App. P. 9.141(c). We have held that such a failure constitutes ineffective assistance of appellate counsel. Santiago v. State, 962 So. 2d 416, 416-17 (Fla. 2d DCA 2007); Zeno v. State, 922 So. 2d 431, 432 (Fla. 2d DCA 2006). Accordingly, we grant the petition and allow Mr. Barnes a new appeal on this issue only. In Cabrera v. State, 890 So. 2d 506, 507-08 (Fla. 2d DCA 2005), we held that…
Authorities Cited
- Zamir Garzon and Ray C. Balthazar v. State, 939 So. 2d 278 (Fla. 4th DCA 2006)
- Garzon v. State, 956 So. 2d 455 (Fla. 2007)
- Green v. State, 910 So. 2d 394 (Fla. 2d DCA 2005)
- Raymundo Zeno v. State, 910 So. 2d 394 (Fla. 2d DCA 2005)
- Zeno v. State, 922 So. 2d 431 (Fla. 2d DCA 2006)