CHARLES M. MENDENHALL, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The court held that appellate counsel was ineffective for failing to argue an erroneous jury instruction on attempted manslaughter, which constituted fundamental error.
[1] An erroneous jury instruction on attempted manslaughter that requires proof of intent to kill constitutes fundamental error.
[2] A conviction is not final until after the Florida Supreme Court's mandate is issued, even if a direct appeal was affirmed earlier.
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Join FLexlaw to unlock all legal intelligenceMendenhall was convicted of attempted second-degree murder after the jury received an erroneous instruction on attempted manslaughter. His direct appe…
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Petitioner, Charles Mendenhall, has filed a petition for writ of habeas corpus alleging ineffective assistance of counsel. Men-denhall claims his appellate counsel was ineffective for failing to argue that the instruction given to the jury on attempted manslaughter was erroneous pursuant to State v. Montgomery, 39 So.3d 252 (Fla.2010). We agree and grant the petition.
In 2007, Mendenhall was tried for attempted first-degree murder, and the jury received instructions on attempted first-degree murder, attempted second-degree murder, and attempted voluntary manslaughter. The instruction on attempted manslaughter was standard instruction 6.6:
6.6 Attempted Voluntary Manslaughter
To prove the crime of attempted voluntary manslaughter, the State must prove the following element beyond a reasonable doubt.
*1154Charles Michael Mendenhall committed an act, which was intended to cause the death of Russell Gay and would have resulted in the death of Russell Gay except that someone prevented Charles Michael Mendenhall from killing Russell Gay or he failed to do so.
However, the Defendant cannot be guilty of attempted voluntary manslaughter if the attempted killing was either excusable or justifiable as I have previously explained those terms.
It is not an attempt to commit manslaughter if the Defendant abandoned the attempt to commit the offense or otherwise prevented its commission under circumstances indicating a complete and voluntary renunciation of his criminal purpose.
In order to convict of attempted voluntary manslaughter, it is not necessary for the State to prove the defendant has a premeditated intent to cause death,
(emphasis added). The jury ultimately convicted Mendenhall of attempted second-degree murder.
On direct appeal, Mendenhall’s appellate counsel only raised a sentencing issue and this court affirmed Mendenhall’s conviction. Mendenhall v. State, 999 So.2d 665 (Fla. 5th DCA 2008). This court’s mandate with respect to that opinion was issued on February 16, 2009. Mendenhall then sought discretionary review in the Florida Supreme Court, and in Mendenhall v. State, 48 So.3d 740 (Fla.2010), the supreme court approved this court’s decision. Its mandate with respect to that opinion was issued on November 18, 2010.
It is undisputed that, pursuant to Montgomery, the wrong instruction on attempted manslaughter was given in Men-denhall’s case. The instruction erroneously suggested that the State was required to prove intent to kill, a requirement not imposed by the manslaughter statute. See Montgomery, 39 So.3d at 256-57 (The standard jury instruction on manslaughter by act required the jury to find that the defendant intended to kill the victim whereas the relevant intent was the intent to commit an act which caused death.). Such an erroneous instruction has been held to constitute fundamental error. See id. at 258 (holding that fundamental error occurred where Montgomery was tried for first-degree murder and convicted of second-degree murder after the jury was given an erroneous instruction on the lesser-included offense of manslaughter); Burton v. State, — So.3d -, -, 2011 WL 1326258 (Fla. 5th DCA 2011) (applying the Montgomery rationale to attempted manslaughter instruction requiring proof of intent to kill).
The trouble with Mendenhall’s claim is that his conviction was affirmed on direct appeal before either the First District or the Florida Supreme Court issued their opinion in Montgomery. However, Mendenhall’s conviction was not final until after Montgome'ry was decided and, thus, the holding applied to his case.1 See Minnich v. State, — So.3d -, -, 2011 WL 265765 (Fla. 1st DCA 2011). Typically, it would be appropriate to file a motion to recall mandate under such circumstances; however, a complicating factor in this case is that the mandate was issued *1155from this court on February 16, 2009. Thus, this court cannot recall the mandate because it is now in a new term. Nonetheless, Mendenhall falls into the category of cases where the 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 REMANDED for a new trial.
PALMER, TORPY and JACOBUS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Guerra v. State, 92 So. 3d 292 (Fla. 5th DCA 2012)…COHEN, J. Carlos Guerra has filed a As we have done in similar cases, we grant Guerra’s petition and remand for a new trial on the attempted second-degree murder charge. See Mendenhall v. State, 82 So. 3d 1153 (Fla. 5th DCA 2012); Dill v. State, 79 So. 3d 849 (Fla. 5th DCA 2012); Hodges v. State, 64 So. 3d 142 (Fla. 5th DCA 2011). We again certify conflict with Williams v. State, 40 So. 3d 72 (Fla. 4th DCA 2010), rev. granted, 64 So. 3d 1262 (Fla.2011).…
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Watts v. State, 210 So. 3d 720 (Fla. 1st DCA 2017)…l would have been appropriate, however, petitioner was unable to file such a motion because this court was no longer in the same term in which the mandate was issued.” Id. (citation omitted). That case was cited with approval in Mendenhall v. State, 82 So. 3d 1153, 1154 (Fla. 5th DCA 2012), in similar circumstances. In both of those cases, relief was granted via habeas corpus because the term of court had expired and appellate counsel was not able to fíle a motion to recall mandate. However, both opinions spe…
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Rambaran v. Sec'y, Dep't OF Corr., 821 F.3d 1325 (11th Cir. 2016)…sistance the district court pointed to two cases in which a Florida intermediate appellate court had concluded that counsel performed defi-ciently by failing to challenge the manslaughter by act instruction on direct appeal. See Mendenhall v. State, 82 So. 3d 1153, 1154-55 (Fla. 5th DCA 2012); Lopez v. State, 68 So. 3d 332, 335 (Fla. 5th DCA 2011). But a state intermediate appellate .court is not the United States Supreme Court. Only the decisions of the nation’s highest court can clearly establish federal la…
Authorities Cited (11 total)
- State v. Montgomery, 39 So. 3d 252 (Fla. 2010)
- Amos Augustus Williams v. State, 40 So. 3d 72 (Fla. 4th DCA 2010)
- Montgomery v. State, 70 So. 3d 603 (Fla. 1st DCA 2009)
- BIR v. State, 64 So. 3d 1262 (Fla. 1st DCA 2011)
- Corey v. Corey, 48 So. 3d 740 (Fla. 2010)
- Mendenhall v. State, 48 So. 3d 740 (Fla. 2010)
- Evangelista Lopez v. State, 68 So. 3d 332 (Fla. 5th DCA 2011)
- Dill v. State, 79 So. 3d 849 (Fla. 5th DCA 2012)
- Hodges v. State, 64 So. 3d 142 (Fla. 5th DCA 2011)
- Mendenhall v. State, 999 So. 2d 665 (Fla. 5th DCA 2008)