WILLIE HODGES, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Willie Hodges, convicted of attempted second-degree murder, petitioned for a writ of habeas corpus alleging ineffective assistance of appellate counsel for failing to raise a fundamental error claim regarding an attempted manslaughter jury instruction that included an intent-to-kill element. The court granted the petition, vacated the judgment, and remanded for a new trial, finding that appellate counsel should have raised the issue following the Florida Supreme Court's Montgomery decision.
The court held that appellate counsel was ineffective because the counsel should have raised the fundamental error issue at the appellate level following the Florida Supreme Court's Montgomery decision. The court granted the writ of habeas corpus, vacated the judgment, and remanded for a new trial.
[1] Appellate counsel's failure to raise a fundamental error issue that was established by controlling precedent prior to the finalization of the direct appeal constitutes in…
[2] A jury instruction for attempted manslaughter that includes the element of intent to kill constitutes fundamental error.
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Join FLexlaw to unlock all legal intelligence“He alleges that his appellate counsel was ineffective in failing to argue that the trial court committed fundamental error when it included in the attempted manslaughter jury instruction the element of intent to kill.”
States the core claim of ineffective assistance of appellate counsel that forms the basis of the petition.
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Join FLexlaw to unlock all legal intelligenceHodges was charged with attempted first-degree murder on a law enforcement officer with a firearm, possession of a firearm by a convicted felon, and a…
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ON MOTION FOR REHEARING
We grant Petitioner’s motion for rehearing, withdraw our prior order denying the *143petition alleging ineffective assistance of counsel and substitute the following opinion in its stead.
Petitioner, Willie Hodges [“Hodges”], convicted of attempted second degree murder, has filed a petition alleging ineffective assistance of appellate counsel because appellate counsel failed to raise the issue of whether the attempted manslaughter jury instruction given in his trial was fundamental error. He relies on State v. Montgomery, 39 So.3d 252 (Fla.2010) and related cases, such as Minnich v. State, — So.3d-, 2011 WL 265765 (Fla. 1st DCA 2011); Bailey v. State, — So.3d -, 2011 WL 265769 (Fla. 1st DCA 2011).
Hodges was charged by amended information with attempted first degree murder on a law enforcement officer with a firearm, possession of a firearm by a convicted felon, and aggravated assault with a firearm. The State later dismissed the charge of possession of a firearm by a convicted felon. The jury found Hodges guilty of the lesser included offense of attempted second degree murder of a law enforcement officer with a firearm and aggravated assault with a firearm. On November 25, 2008, Hodges filed an appeal. This Court issued a per curiam affirmance, and the mandate issued on June 9, 2010.
In September 2010, Hodges filed a petition for writ of habeas corpus, alleging ineffective assistance of counsel. He alleges that his appellate counsel was ineffective in failing to argue that the trial court committed fundamental error when it included in the attempted manslaughter jury instruction the element of intent to kill. The jury instruction for attempted manslaughter included the language: “Hodges committed an act which was intended to cause death.”
We initially denied the petition, citing to Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), a decision of the Fourth District Court of Appeal. During the pen-dency of Hodges’ motion for rehearing, however, we have reconsidered Williams and have concluded that our rebanee on it was wrong. See Burton v. State, — So.3d - (Fla. 5th DCA 2011). Given the Florida Supreme Court’s April 2010 Montgomery decision, we are bound to conclude that appellate counsel should have 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.
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)…a. 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. State, 64 So. 3d 142 (Fla. 5th DCA 2011). Likewise, this Court has found ineffective assistance of appellate counsel because of the failure to raise the First District’s Montgomery holding. Lopez v. State, 68 So. 3d 332 (Fla. 5th DCA 2011) (acknowledging controlling pre…
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Mendenhall v. State, 82 So. 3d 1153 (Fla. 5th DCA 2012)…he remedy for the relief that he is seeking is by habeas corpus petition. See id. This case is one of several cases that have been before this court on the issue of Montgomery. See Lopez v. State, 68 So. 3d 332 (Fla. 5th DCA 2011); Hodges v. State, 64 So. 3d 142 (Fla. 5th DCA 2011); Dill v. State, 79 So. 3d 849 (Fla. 5th DCA 2012). Again we cite conflict with Williams v. State, 40 So. 3d 72 (Fla. 4th DCA 2010), rev. granted, 64 So. 3d 1262 (Fla.2011). The Writ of Habeas Corpus is GRANTED and this matter is…
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Luciano v. State, 68 So. 3d 992 (Fla. 5th DCA 2011)…PER CURIAM. ON MOTION FOR REHEARING We grant petitioner’s motion for rehearing, and withdraw our prior order denying relief. For the reasons explained in Lopez v. State, 68 So. 3d 332 (Fla. 5th DCA 2011) and Hodges v. State, 64 So. 3d 142 (Fla. 5th DCA 2011), we grant the petition alleging ineffective assistance of appellate counsel, vacate petitioner’s attempted second-degree murder conviction and remand for a new trial. In granting this relief, we rely upon Burton v. State, — So. 3…
Previewing 3 of 6 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)
- Amos Augustus Williams v. State, 40 So. 3d 72 (Fla. 4th DCA 2010)
- Toby v. State, 29 So. 3d 1138 (Fla. 1st DCA 2009)
- Sharpe v. State, 39 So. 3d 342 (Fla. 1st DCA 2010)
- Nichols v. State, 32 So. 3d 718 (Fla. 1st DCA 2010)
- Lamont Asberry v. State, 32 So. 3d 718 (Fla. 1st DCA 2010)