LAMONT ASBERRY, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Lamont Asberry was convicted of second-degree murder and appealed, with his conviction initially affirmed. On a subsequent petition for ineffective assistance of appellate counsel, the court found that his counsel failed to seek supplemental briefing on a newly decided precedent (Montgomery v. State) concerning fundamental error in jury instructions on manslaughter. The court reversed the conviction and remanded for a new trial.
Appellate counsel was ineffective for failing to seek supplemental briefing based on the Montgomery precedent. The conviction is reversed and the case is remanded to the trial court for further proceedings. Because the jury instruction relates to elements of the crime rather than an affirmative defense, the court found it unnecessary to order another appeal.
[1] Appellate counsel is ineffective for failing to seek supplemental briefing on a controlling appellate decision that establishes fundamental error regarding a jury instruc…
[2] Fundamental error in a jury instruction relating to the elements of a crime warrants reversal and remand for a new trial.
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Join FLexlaw to unlock all legal intelligence“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.”
Establishes that Montgomery precedent held the jury instruction was fundamental error, creating the basis for ineffective assistance claim
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Join FLexlaw to unlock all legal intelligenceAsberry was convicted of second-degree murder by a Duval County jury and sentenced to imprisonment. His direct appeal was filed July 30, 2008, with th…
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Petitioner Lamont Asberry was convicted of second-degree murder by a Duval County jury and sentenced to a term of imprisonment. He appealed and this court affirmed the conviction. Asberry v. State, 4 So.3d 1271 (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 July 30, 2008, and the state’s answer brief was filed in October 2008. Our opinion issued on March 26, 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 than an affirmative defense, we find it unnecessary to order another appeal. The conviction is reversed and the cause is remanded to the trial court for further proceedings. See Toby v. State, 29 So.3d 1138 (Fla. 1st DCA 2009). 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.
BENTON, VAN NORTWICK, and CLARK, JJ., concur.
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Citator
Cited By
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Hodges v. State, 64 So. 3d 142 (Fla. 5th DCA 2011)
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Minnich v. State, 130 So. 3d 695 (Fla. 1st DCA 2011)
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Sims v. State, 78 So. 3d 30 (Fla. 5th DCA 2011)
Previewing 3 of 4 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)
- Toby v. State, 29 So. 3d 1138 (Fla. 1st DCA 2009)
- Lamont Asberry v. State, 4 So. 3d 1271 (Fla. 1st DCA 2009)