JOSHUA MCCLENDON, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Joshua McClendon petitioned for relief based on ineffective assistance of appellate counsel, claiming his appellate counsel failed to argue that the standard jury instruction for attempted manslaughter improperly added an element of intent to kill. The court granted the petition in part, reversing McClendon's attempted second-degree murder conviction and remanding for a new trial, following its precedent in Betts v. State.
The court held that appellate counsel was ineffective in failing to raise this argument. McClendon's attempted second-degree murder conviction was reversed, the sentence was vacated, and the case was remanded for a new trial, based on the court's precedent in Betts v. State.
[1] A jury instruction for attempted manslaughter by act is fundamentally erroneous if it improperly imposes an additional element of an intent to kill.
[2] Appellate counsel may be deemed ineffective for failing to argue that a standard jury instruction constituted fundamental error.
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“McClendon contends that appellate counsel was ineffective in failing to argue that the standard jury instruction for attempted manslaughter by act that was provided to the jury constituted fundamental error because it improperly imposed an additional element of an intent to kill.”
States the core ineffective assistance claim at issue in the petition
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Join FLexlaw to unlock all legal intelligenceMcClendon was charged with two counts of attempted first-degree premeditated murder. Following a jury trial, he was convicted of the lesser-included o…
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Joshua McClendon, in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(d), raises three claims of ineffective assistance of appellate counsel. We deny two claims without comment. In the remaining claim, McClendon contends that appellate counsel was ineffective in failing to argue that the standard jury instruction for attempted manslaughter by act that was provided to the jury constituted fundamental error because it improperly imposed an additional element of an intent to kill.
McClendon was charged with two counts of attempted first-degree premeditated murder. Following a jury trial, he was convicted of the lesser-included offenses of attempted second-degree murder and improper exhibition of a firearm. The jury was instructed on both attempted second-degree murder and attempted manslaughter by act as category one lesser-included offenses of attempted first-degree premeditated murder. See Fla. Std. Jury Instr. (Crim.) 6.2. The State, in its response to the petition, acknowledges that our decision in this case is governed by this court’s opinion in Betts v. State, — So.3d —, 2011 WL 6058312 (Fla.2011),1 and that McClendon is entitled to relief.
Accordingly, because a new appeal would be redundant in this case, we re*1132verse McClendon’s attempted second-degree murder conviction,2 vacate the sentence, and remand for a new trial. See Betts, — So.3d —. As we did in Betts, we certify conflict with Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), review granted, 64 So.3d 1262 (Fla.2011).
Petition granted in part and denied in part; conflict certified.
DAVIS and VILLANTI, JJ., Concur.
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Citator
Cited By
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Sanders v. State, 135 So. 3d 413 (Fla. 2d DCA 2014)…es, a defendant is entitled to relief in this context and is 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-degre…
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Myreon Harrison v. State, 98 So. 3d 790 (Fla. 2d DCA 2012)…ional element of intent to kill. We agree, grant the petition, and certify conflict with Williams v. State, 40 So. 3d 72 (Fla. 4th DCA 2010), review granted, 64 So. 3d 1262 (Fla.2011). Our decision is governed by our opinion in McClendon v. State, 93 So. 3d 1131 (Fla. 2d DCA 2012). Mr. Harrison was Mr. McClendon’s codefendant. They were tried together, and a jury convicted both of attempted second-degree murder and improper exhibition of a firearm. Harrison v. State, 61 So. 3d 412, 412-13 (Fla. 2d DCA 2010)…
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)
- BIR v. State, 64 So. 3d 1262 (Fla. 1st DCA 2011)