WILLIE FRED SIMS, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Willie Fred Sims petitioned for relief claiming his appellate counsel was ineffective for failing to raise a fundamental error regarding a defective jury instruction for manslaughter by intentional act. The court granted the petition and remanded for a new trial, finding that appellate counsel should have raised this issue following the Florida Supreme Court's Montgomery decision.
Appellate counsel was ineffective for failing to raise the unpreserved but fundamental error regarding the defective manslaughter instruction. Given the Florida Supreme Court's April 2010 Montgomery decision, appellate counsel should have raised this issue at the appellate level.
[1] Appellate counsel renders ineffective assistance when failing to raise an unpreserved but fundamental error on direct appeal.
[2] A defective jury instruction, previously identified as fundamental error by the Florida Supreme Court, constitutes ineffective assistance of appellate counsel if not rais…
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Join FLexlaw to unlock all legal intelligence“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.”
Establishes the standard that appellate counsel had an obligation to raise the defective jury instruction issue after Montgomery was decided.
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Join FLexlaw to unlock all legal intelligenceSims was tried in March 2009 for a crime that included a manslaughter instruction. His direct appeal was pending when the Florida Supreme Court decide…
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Petitioner, Willie Fred Sims [“Sims”], asserts that the jury instruction for manslaughter by intentional act given at his trial constituted fundamental error and that appellate counsel rendered ineffective assistance when he failed to raise this issue on direct appeal. This Court’s decisions in Hodges v. State, 64 So.3d 142 (Fla. 5th DCA 2011), and Burton v. State, — So.3d -, 2011 WL 1326258 (Fla. 5th DCA 2011), compel that we grant relief to Sims.
Sims argues that his appellate counsel was ineffective for failing to raise the un-preserved but fundamental error caused by the court giving the standard jury instruction for manslaughter by act, which was held to be defective in State v. Montgomery, 39 So.3d 252 (Fla.2010), approving Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009).
Sims was tried in March 2009, just after the First District’s decision in Montgomery was released, and his appeal was in the pipeline at the time that State v. Montgomery was decided by the supreme court. State v. Montgomery was decided on April 8, 2010, and the mandate was issued in Sims’ direct appeal in October 2010.
In Hodges, the defendant was convicted of attempted second-degree murder after being tried for attempted first-degree murder. He 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. In Hodges, as in *31this case, the error was unpreserved below. As noted in the Hodges opinion: “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.... ” Hodges, 64 So.3d at 143 (citing Minnich v. State, — So.3d-, 2011 WL 265765 (Fla. 1st DCA 2011)); Bailey v. State, — So.3d -, 2011 WL 265769 (Fla. 1st DCA 2011); 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 grant the petition and remand for a new trial on the attempted first-degree murder charge.
PETITION GRANTED; REMANDED.
GRIFFIN, PALMER and EVANDER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Montgomery, 39 So. 3d 252 (Fla. 2010)
- Montgomery v. State, 70 So. 3d 603 (Fla. 1st DCA 2009)
- Toby v. State, 29 So. 3d 1138 (Fla. 1st DCA 2009)
- Hodges v. State, 64 So. 3d 142 (Fla. 5th DCA 2011)
- 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)