ROBERT CUMMINGS, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Robert Cummings sought postconviction relief arguing his appellate counsel was ineffective for failing to raise that a manslaughter-by-act jury instruction constituted fundamental error. The court agreed, finding that under State v. Montgomery, the same erroneous instruction that was given in Cummings' case was per se reversible, and reversed his second-degree murder conviction.
The court held that appellate counsel was ineffective because the same manslaughter instruction given in Cummings' case was ruled fundamentally erroneous and per se reversible in Montgomery, and counsel should have raised this argument. The court reversed Cummings' second-degree murder conviction and remanded for a new trial on that count.
[1] Ineffective assistance of appellate counsel can be established by demonstrating that counsel failed to raise a claim that would have compelled reversal.
[2] A jury instruction that erroneously imposes a requirement to find intent, when the offense does not require such intent, constitutes fundamental error if it is one step r…
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Join FLexlaw to unlock all legal intelligence“Because Montgomery's conviction for second-degree murder was only one step removed from the necessarily lesser included offense of manslaughter, under Pena, fundamental error occurred in his case which was per se reversible where the manslaughter instruction erroneously imposed upon the jury a requirement to find that Montgomery intended to kill Ellis.”
Establishes the Montgomery standard for finding fundamental error in manslaughter instructions
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Join FLexlaw to unlock all legal intelligenceCummings was convicted by jury of second-degree murder with a firearm along with three other offenses. His conviction was affirmed on direct appeal. T…
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Robert Cummings, in the sole ground in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(d), contends that his appellate counsel was ineffective in failing to argue that the manslaughter by act instruction that was given as a necessarily lesser included offense of second-degree murder with a firearm1 constituted fundamental error. We agree, and we reverse Cummings’ conviction for second-degree murder with a firearm, vacate the sentence, and remand for a new trial on that offense only.
Following a jury trial, Cummings was convicted of second-degree murder with a firearm.2 The judgment and sentences were affirmed on direct appeal. Cummings v. State, 60 So.3d 394 (Fla. 2d DCA 2011) (unpublished table decision). Before the initial brief was filed in Cummings, the supreme court issued its opinion in State v. Montgomery, 39 So.3d 252, 259 (Fla.2010), wherein it held as follows:
Because Montgomery’s conviction for second-degree murder was only one step removed from the necessarily lesser included offense of manslaughter, under Pena [v. State, 901 So.2d 781 (Fla. 2005) ], fundamental error occurred in his case which was per se reversible where the manslaughter instruction erroneously imposed upon the jury a requirement to find that Montgomery intended to kill Ellis.
The same manslaughter by act instruction that was provided to Montgomery’s jury was also given in the present case. Had appellate counsel argued that based on the holding of Montgomery the manslaughter by act instruction was fundamentally erroneous, we would have been compelled to reverse Cummings’ conviction for second-degree murder with a firearm. We therefore conclude that appellate counsel rendered ineffective assistance in failing to so argue.
Because a new appeal would be redundant in this ease, we reverse Cummings’ conviction for second-degree murder with a firearm, vacate the sentence, and remand for a new trial on that count of the information only. See Ferrer v. State, 69 So.3d 360, 362 (Fla. 2d DCA 2011).
Petition granted.
CASANUEVA, DAVIS, and KELLY, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Martinez v. State, 123 So. 3d 701 (Fla. 1st DCA 2013)…3d 599, 605 (Fla. 5th DCA 2013) (granting new trial on one count); Fluker v. Buss, 112 So. 3d 503, 503-04 (Fla. 3d DCA 2012) (ordering new trial); Alexis v. State, 112 So. 3d 144, 145 (Fla. 1st DCA 2013) (ordering second appeal); Cummings v. State, 103 So. 3d 1048, 1048 (Fla. 2d DCA 2013) (ordering new trial); Riley v. State, 25 So. 3d 1, 3-4 (Fla. 1st DCA 2008) (reversing conviction and sentence and remanding for new trial on one count). On direct appeal, before filing an initial brief, moreover, appellate…
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Crenshaw v. State, 252 So. 3d 856 (Fla. 2d DCA 2018)…ould be manifestly unjust to deny him relief under these circumstances where this court and other district courts - 3 - have given similarly situated appellants the benefit of Montgomery and have reversed for a new trial. See Cummings v. State, 103 So. 3d 1048, 1048 (Fla. 2d DCA 2013) (reversing denial of petition alleging ineffective assistance of appellate counsel for failing to argue that the manslaughter instruction was fundamental error where the initial brief was filed after the supreme court's d…
Authorities Cited
- State v. Montgomery, 39 So. 3d 252 (Fla. 2010)
- Pena v. State, 901 So. 2d 781 (Fla. 2005)
- Ferrer v. State, 69 So. 3d 360 (Fla. 2d DCA 2011)