LEO TOBY, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Appellate counsel was ineffective for failing to seek supplemental briefing on a new controlling precedent regarding a jury instruction.
Petitioner's direct appeal counsel failed to raise a controlling precedent regarding a jury instruction that was decided after the initial brief was f…
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Petitioner Leo Toby was convicted of second-degree murder as charged by a Duval County jury and sentenced to a term of imprisonment. He appealed and this court affirmed. Toby v. State, 7 So.3d 1102 (Fla. 1st DCA 2009). He now alleges that he received ineffective assistance of counsel in the direct appeal. We agree, reverse the conviction, and remand for a new trial.
Petitioner’s counsel filed the initial brief in the direct appeal on September 29, 2008, and the state’s answer brief was filed 25 days later. Our opinion issued on April 15, 2009. In the interim, however, we decided Montgomery v. State, — So.3d -, 2009 WL 350624 (Fla. 1st DCA 2009), review granted, 11 So.3d 943 (Fla. 2009), holding that giving of the standard jury instruction on manslaughter in a case such as petitioner’s was fundamental error. Petitioner argues that his appellate counsel was ineffective in failing to seek supplemental briefing in the direct appeal on the Montgomery issue. In Ortiz v. State, 905 So.2d 1016 (Fla. 2d DCA 2005), the court found counsel was ineffective when he did not ask for supplemental briefing based on an appellate decision concerning a self-defense jury instruction in similar circumstances. We adopt the reasoning of Ortiz and conclude that petitioner is entitled to relief. Because the jury instruction here relates to elements of the crime rather *1139than an affirmative defense, we find it unnecessary to order another appeal. The conviction is reversed and the cause is remanded to the tidal court for further proceedings. In so doing, we certify the same question of great public importance that we certified in Montgomery:
IS THE STATE REQUIRED TO PROVE THAT THE DEFENDANT INTENDED TO KILL THE VICTIM IN ORDER TO ESTABLISH THE CRIME OF MANSLAUGHTER BY ACT?
PETITION GRANTED.
KAHN, WEBSTER, and ROBERTS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Dill v. State, 79 So. 3d 849 (Fla. 5th DCA 2012)…sel’s duty to raise the Montgomery issue, the First District has held that, in eases pending when it decided Montgomery, appellate counsel was ineffective for failing to ask for supplemental briefing on the jury instruction issue. See Toby v. State, 29 So. 3d 1138 (Fla. 1st DCA 2009). This Court has found ineffective assistance of appellate counsel where appellate counsel failed to raise the Florida Supreme Court’s April 2010, Montgomery decision while the petitioner’s direct appeal was pending. Hodges v. Sta…
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Hodges v. State, 64 So. 3d 142 (Fla. 5th DCA 2011)…e raised the issue at the appellate level before our decision in the appeal was final. See Minnich, — So. 3d-: Bailey, — So. 3d-; Sharpe v. State, 39 So. 3d 342 (Fla. 1st DCA 2010); Asberry v. State, 32 So. 3d 718 (Fla. 1st DCA 2010); Toby v. State, 29 So. 3d 1138 (Fla. 1st DCA 2009). We accordingly grant the writ, vacate the judgment and remand for a new trial. Petition GRANTED; Judgment VACATED; and REMANDED. GRIFFIN, TORPY and COHEN, JJ., concur.…
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Sharpe v. State, 39 So. 3d 342 (Fla. 1st DCA 2010)…manslaughter in a case of this nature was fundamental error. The Florida Supreme Court has recently affirmed the decision of this court in State v. Montgomery, 39 So. 3d 252, 2010 WL 1372701 (Fla.2010). This case is similar to that of Toby v. State, 29 So. 3d 1138 (Fla. 1st DCA 2009). We therefore grant the petition and reverse the conviction and sentence and remand to the trial court for further proceedings. The challenge to the alleged sentencing error is dismissed as moot. PETITION GRANTED IN PART. EAH…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Alexander v. State, 11 So. 3d 943 (Fla. 1st DCA 2009)
- Ortiz v. State, 905 So. 2d 1016 (Fla. 2d DCA 2005)