ERNEST MCKAY, PETITIONER,
v.
THE STATE OF FLORIDA, RESPONDENT
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The court held that McKay's conspiracy convictions should be vacated and remanded for a new trial, consistent with a prior ruling in a co-defendant's case.
Ernest McKay was convicted of RICO and conspiracy offenses. A co-defendant's conviction on similar conspiracy counts was vacated due to an improper ju…
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PER CURIAM.
Ernest McKay filed a pro se petition alleging ineffective assistance of appellate counsel. Although his petition was untimely under Florida Rule of Appellate Procedure 9.141(c)(4)(B), he asserts that consideration of his claim is necessary to avoid a manifest injustice. See Baker v. State, 878 So. 2d 1236 (Fla.2004).
McKay and several co-defendants were convicted of substantive criminal offenses and conspiracy to commit criminal offenses. The charges included offenses under the Florida Racketeer Influenced and Corrupt Organization (RICO) Act, section 895.01, Florida Statutes (1995), and conspiracy to violate RICO. McKay was ultimately convicted and sentenced on four of the conspiracy counts and two substantive criminal offenses.
In a post-conviction case brought by a co-defendant, Kanisky Evans, we held that a “principal” jury instruction should not have been given with respect to the conspiracy counts, citing Ramirez v. State, 371 So. 2d 1063 (Fla. 3d DCA 1979). We therefore vacated the conviction and sentence on those counts and remanded for a new trial on the conspiracy counts only, leaving undisturbed the conviction and sentence on the remaining counts. Evans v. State, 985 So. 2d 1105 (Fla. 3d DCA 2007).
For the reasons set forth in our decision in Evans, we now vacate and remand for new trial McKay’s conviction and sentence as to the conspiracy counts — counts 2, 3, 4, and 12 — while leaving undisturbed McKay’s conviction and sentence on counts 5 and 6.
Petition granted in part and denied in part.
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Smith v. State, 213 So. 3d 722 (Fla. 2017)…armless error, when considering these factors combined we cannot conclude that [the defendant] received a fair and impartial trial.” Id. at 217. . We reject Smith’s reliance on Evans v. State, 985 So. 2d 1105 (Fla. 3d DCA 2007), and McKay v. State, 988 So. 2d 51 (Fla. 3d DCA 2008), which involved the granting of relief due to the ineffective assistance of appellate counsel. . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). . Smith further seeks to reserve the right to challenge the c…
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Lavoris Johnson v. State, 226 So. 3d 908 (Fla. 4th DCA 2017)…ifest injustice. Figueroa v. State, 84 So. 3d 1158, 1162 (Fla. 2d DCA 2012); Stephens, 974 So. 2d at 457. Disparate treatment of similarly situated co-defendants can result in manifest injustice, warranting habeas relief. See, e.g., McKay v. State, 988 So. 2d 51 (Fla. 3d DCA 2008) (granting relief on an untimely petition alleging ineffective assistance of appellate counsel, where a co-defendant’s convictions were vacated on the same issue); see also Haager v. State, 36 So. 3d 883 (Fla. 2d DCA 2010) (reversi…
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Parrish Kerney v. State, 217 So. 3d 138 (Fla. 3d DCA 2017)…CA 2015); Dowe v. State, 162 So. 3d 35 (Fla. 4th DCA 2014); Smith v. State, 145 So. 3d 972 (Fla. 1st DCA 2014); Barros-Dias v. State, 141 So. 3d 674 (Fla. 2d DCA 2014); Moninger v. State, 137 So. 3d 1129 (Fla. 4th DCA 2014); see also McKay v. State, 988 So. 2d 51, 52 (Fla. 3d DCA 2008) (vacating a judgment on an untimely ineffective assistance of appellate counsel motion claiming manifest injustice); Adams v. State, 957 So. 2d 1183. (Fla. 3d DCA 2006) (granting relief based on manifest injustice on an untime…
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
- Baker v. State, 878 So. 2d 1236 (Fla. 2004)
- Florentino Ramirez v. State, 371 So. 2d 1063 (Fla. 3d DCA 1979)
- Kanisky Evans v. State, 985 So. 2d 1105 (Fla. 3d DCA 2008)