EDWARD ARNOLD, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Arnold petitioned for post-conviction relief claiming his appellate counsel was ineffective for failing to challenge a fundamentally erroneous jury instruction on attempted manslaughter by act. The court granted the petition, finding the instruction was indeed fundamentally erroneous and that counsel's failure to raise this issue constituted ineffective assistance, warranting a new trial.
Arnold's appellate counsel was ineffective for failing to raise the argument that the standard attempted manslaughter by act instruction was fundamentally erroneous. Because this claim of ineffective counsel has merit, Arnold's conviction is reversed, his sentence is vacated, and the case is remanded for a new trial.
[1] Appellate counsel is ineffective for failing to argue that a jury was given a fundamentally erroneous instruction on attempted manslaughter by act.
[2] The standard jury instruction for attempted manslaughter by act was fundamentally erroneous because it improperly contained an additional element of intent to kill.
Previewing 2 of 4 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“Attempted manslaughter by act, commonly referred to as attempted voluntary manslaughter, also is a category one lesser-included offense of attempted first-degree premeditated murder.”
Establishes the legal relationship between attempted manslaughter and the charged offense, relevant to the jury instruction issue.
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Join FLexlaw to unlock all legal intelligenceArnold was charged with attempted first-degree premeditated murder and was convicted of the lesser-included offense of attempted second-degree murder.…
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We previously affirmed Edward Arnold’s conviction for attempted second-degree murder. Arnold v. State, 46 So.3d 52 (Fla. 2d DCA 2010) (table decision). Thereafter, Arnold filed a petition pursuant to Florida Rule of Appellate Procedure 9.141(d), alleging that his appellate counsel was ineffective. He contends that counsel was deficient in failing to argue that his jury was given a fundamentally erroneous instruction on attempted manslaughter by act. We agree.
Arnold was charged with attempted first-degree premeditated murder and was convicted of the category one lesser-included offense of attempted second-degree murder.1 Attempted manslaughter by act, commonly referred to as attempted voluntary manslaughter, also is a category one lesser-included offense of attempted first-degree premeditated murder. Betts v. State, — So.3d —, —, 2011 WL 6058312 (Fla. 2d DCA 2011); Fla. Std. Jury Instr. (Crim.) 6.2. At Arnold’s trial, the jury was given the standard instruction on attempted manslaughter by act.
The notice of appeal in Arnold’s case was filed after the First District decided Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009), approved, 39 So.3d 252 (Fla.2010), in which it held that the then-standard manslaughter by act instruction was fundamentally erroneous because it improperly contained an additional element of intent to kill.2 The day after the notice was filed, the supreme court accepted the Montgomery decision for review. State v. Montgomery, 11 So.3d 943 (Fla. 2009). Before Arnold’s initial brief was filed, the First District issued Lamb v. State, 18 So.3d 734, 735 (Fla. 1st DCA 2009), extending Montgomery to hold that it was fundamental error to give the standard instruction on attempted manslaughter by act. This court subsequently came to that view. Mueller v. State, — So.3d —, 2011 WL 4104912 (Fla. 2d DCA 2011); Houston v. State, 87 So.3d 1 (Fla. 2d DCA 2011); Gonzalez v. State, 40 So.3d 60 (Fla. 2d DCA 2010).
Under materially identical circumstances, we held that appellate counsel in Betts was ineffective for failing to argue that the standard attempted manslaughter by act instruction was fundamentally erroneous. — So.3d at —. Guided by that *1096decision, we reach the same conclusion in Arnold’s case.
Because a new appeal would be redundant in this case, we reverse Arnold’s conviction for attempted second-degree murder, vacate the sentence, and remand for a new trial. See Betts, — So.3d at —. As we did in Betts, we certify that our decision is in conflict with Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), review granted, 64 So.3d 1262 (Fla.2011).
Petition granted; conflict certified.
WALLACE and MORRIS, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Sanders v. State, 135 So. 3d 413 (Fla. 2d DCA 2014)…s entitled to a new trial on the attempted homicide charge. See Pierce v. State, 121 So. 3d 1091 (Fla. 5th DCA 2013); Coleman v. State, 110 So. 3d 971 (Fla. 2d DCA 2013); McClendon v. State, 93 So. 3d 1131 (Fla. 2d DCA 2012); Arnold v. State, [*415] 93 So. 3d 1094 (Fla. 2d DCA 2012). There being no reason to deviate from this law in this case, we grant Mr. Sanders the same relief. Accordingly, Mr. Sanders is entitled to have his attempted second-degree murder conviction set aside. Because a new appeal would b…
Authorities Cited
- 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)
- Lamb v. State, 18 So. 3d 734 (Fla. 1st DCA 2009)
- BIR v. State, 64 So. 3d 1262 (Fla. 1st DCA 2011)
- Alexander v. State, 11 So. 3d 943 (Fla. 1st DCA 2009)
- Banek v. State, 75 So. 3d 762 (Fla. 2d DCA 2011)
- Houston v. State, 87 So. 3d 1 (Fla. 2d DCA 2011)
- Barbour v. State, 40 So. 3d 60 (Fla. 5th DCA 2010)
- Estaban E. Gonzalez v. State, 40 So. 3d 60 (Fla. 2d DCA 2010)