KENNETH DANIELS, PETITIONER,
v.
THE STATE OF FLORIDA, RESPONDENT
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Habeas corpus petition denied where appellate counsel's failure to raise a Montgomery fundamental error claim caused no harm because the jury received a culpable negligence instruction providing an alternative conviction path.
Appellate counsel was not ineffective for failing to raise a Montgomery fundamental error claim where the jury was instructed on manslaughter by culpable negligence, providing an alternative lesser-included offense that cured any error.
[1] Appellate counsel is not ineffective for failing to raise a Montgomery fundamental error claim where the jury received instructions on both the charged offense and a less…
Previewing 1 of 1 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“the jury was therefore given an opportunity (an opportunity not available to the Montgomery jury) to convict the defendant of the lesser included offense of manslaughter by culpable negligence, which clearly does not require an intent to kill”
Explaining why the culpable negligence instruction cured any fundamental error that might have existed under Montgomery
Daniels was charged with second-degree murder but convicted of manslaughter. He sought habeas corpus relief claiming his appellate counsel was ineffec…
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The appellant, who was charged with second-degree murder but convicted of manslaughter, seeks habeas corpus relief claiming that his appellate counsel in Daniels v. State, 23 So.Sd 725 (Fla. 3d DCA 2009)(Table) was ineffective because he failed to raise a fundamental error claim based on State v. Montgomery, 39 So.3d 252 (Fla.2010). We deny the motion because, under the circumstances of this case, including the fact that the jury was given a manslaughter by culpable negligence instruction, no harmful error in fact took place. Contreras-Mayahua v. State, 40 So.3d 861 (Fla. 4th DCA 2010), Cubelo v. State, 41 So.3d 263 (Fla. 3d DCA 2010), and Salonko v. State, 42 So.3d 801 (Fla. 1st DCA 2010), which involve identical factual situations, require this result. In Cúbelo, for example, the court stated:
We find, as the First District found in Salonko, that the instant case is factually distinguishable from Montgomery as the Montgomery jury did not receive an instruction on culpable negligence as did the jury in the instant case. In the instant case, the jury was therefore given an opportunity (an opportunity not available to the Montgomery jury) to convict the defendant of the lesser included offense of manslaughter by culpable negligence, which clearly does not require an intent to kill. Thus, we conclude, as the First District concluded in Salonko, that because the jury was instructed on both manslaughter by act and manslaughter by culpable negligence, there was no fundamental error requiring a reversal of the defendant’s conviction for second-degree murder.
Cubelo at 267-268.
Habeas corpus denied.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Baron Moore v. State, 57 So. 3d 240 (Fla. 3d DCA 2011)…ecause the jury was instructed on both manslaughter by intentional act and manslaughter by culpable negligence, there was no fundamental error requiring reversal of Cubelo’s conviction for second-degree murder. Id. at 268; see also Daniels v. State, 46 So. 3d 630, 630 (Fla. 3d DCA 2010) (finding no fundamental error where the manslaughter by culpable negligence instruction was also given, and distinguishing Montgomery); Guerra v. State, 44 So. 3d 226, 226 (Fla. 3d DCA 2010) (same); Salonko v. State, 42 So. 3…
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Tedrick Page v. State, 81 So. 3d 525 (Fla. 3d DCA 2012)…. State, 50 So. 3d 1207 (Fla. 1st DCA 2010); Riesel v. State, 48 So. 3d 885, 886-87 (Fla. 1st DCA 2010); Pryor v. State, 48 So. 3d 159, 163 (Fla. 1st DCA 2010). This Court, however, squarely held to the contrary in Figueroa. Accord Daniels v. State, 46 So. 3d 630 (Fla. 3d DCA 2010); Morgan v. State, 42 So. 3d 862 (Fla. 4th DCA 2010). We both agree with and are bound by that decision. See also Moore v. State, 57 So. 3d 240 (Fla. 3d DCA 2011) (alternative holding; citing Morgan with approval).1 Briefly and pr…
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Leonel Munoz v. State, 61 So. 3d 1152 (Fla. 3d DCA 2011)…appellate counsel’s ineffective assistance in failing to raise a fundamental error claim, pursuant to State v. Montgomery, 39 So. 3d 252 (Fla.2010). Based on our prior decisions in Cubelo v. State, 41 So. 3d 263 (Fla. 3d DCA 2010), Daniels v. State, 46 So. 3d 630 (Fla. 3d DCA 2010), and Guerra v. State, 44 So. 3d 226 (Fla. 3d DCA 2010), we deny the motion. Where the jury was instructed on both manslaughter by act and manslaughter by culpable negligence, there was no fundamental error requiring a reversal of…
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
- State v. Montgomery, 39 So. 3d 252 (Fla. 2010)
- Salonko v. State, 42 So. 3d 801 (Fla. 1st DCA 2010)
- Baker v. McNEIL, 41 So. 3d 263 (Fla. 1st DCA 2010)
- Cubelo v. State, 41 So. 3d 263 (Fla. 3d DCA 2010)
- Contreras-Mayahua v. State, 40 So. 3d 861 (Fla. 4th DCA 2010)