WILSON PIERRE, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Wilson Pierre was convicted of second-degree murder after a jury instruction on the lesser included offense of manslaughter. On appeal in a habeas corpus petition, Pierre challenged his appellate counsel's ineffectiveness for failing to argue that the manslaughter instruction constituted fundamental error under State v. Montgomery and for failing to cite favorable case law from other districts. The court granted the petition, finding counsel's omissions substantially compromised the appellate process.
Appellate counsel was ineffective. The court granted Pierre's petition for writ of habeas corpus, finding that counsel's omissions—failing to raise the Montgomery issue and failing to provide notice of the conflicting Riesel decision from the First District—constituted a serious error and substantial deficiency that compromised the appellate process and undermined confidence in the outcome of the direct appeal.
[1] Appellate counsel may be ineffective for failing to raise a controlling precedent from another jurisdiction that could result in a reversal.
[2] Appellate counsel may be ineffective for failing to notify the court of favorable case law from other jurisdictions during the pendency of an appeal.
Previewing 2 of 5 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“an instruction for manslaughter by act requiring proof of intent to kill was fundamentally erroneous”
Establishes the legal standard from Montgomery that the manslaughter instruction at issue violated by requiring proof of intent to kill rather than just intent to commit the act that caused death
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Join FLexlaw to unlock all legal intelligencePierre was charged with first-degree murder. The trial court instructed the jury on lesser included offenses of second-degree murder and manslaughter …
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Wilson Pierre, Jr., alleges that his appellate counsel was ineffective for failing to argue on appeal that the manslaughter jury instruction given to the jury constituted fundamental error pursuant to State v. Montgomery, 39 So.Bd 252, 259 (Fla.2010). He also faults appellate counsel for failing to notify the court about favorable case law from other jurisdictions. We agree and grant the petition.
Pierre was charged with first-degree murder. The jury was instructed on the lesser included offenses of second-degree murder and manslaughter by intentional act. With respect to manslaughter as a lesser included offense, the court instructed the jury that the State had to prove that Pierre “intentionally caused” the victim’s death. Later in the instruction, the court also stated that “it [was] not necessary for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death.” This second provision was consistent with a 2008 amendment to the instruction for manslaughter by intentional act. In re Standard Jury Instructions in Criminal Cases-Report No. 2007-10, 997 So.2d 403 (Fla.2008). The jury found Pierre guilty of second-degree murder as a lesser included offense and the judgment and sentence were affirmed on appeal. See Pierre v. State, 90 So.3d 892 (Fla. 4th DCA 2012).
Pierre argues that this instruction violated Montgomery, which held that an instruction for manslaughter by act requiring proof of intent to kill was fundamentally erroneous. 39 So.3d at 259. He faults counsel for failing to raise Montgomery on appeal and for failing to notify the court about Riesel v. State, 48 So.3d 885 (Fla. 1st DCA 2010), in which the First District held that an instruction identical to the one in the instant case constituted fundamental error pursuant to Montgomery. Pierre also notes that this Court certified the question in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), almost a year before his initial brief was filed.
The State counters that counsel is not required to anticipate changes in the law. For support, the State notes that at the time of Pierre’s appeal, precedent from this Court established that an instruction consistent with the 2008 amendment was proper. See Morgan v. State, 42 So.3d 862 (Fla. 4th DCA 2010), quashed, 134 So.3d 449 (Fla.2014).
The Third District recently addressed a similar issue in Skinner v. State, 137 So.3d 1164 (Fla. 3d DCA 2014). The court noted that “ ‘there are cases that hold that appellate counsel is ineffective for failing to raise favorable cases decided by other jurisdictions during the pendency of an appeal, which could result in a reversal.’ ” Id. at 1166 (quoting Granberry v. State, 919 So.2d 699, 701 (Fla. 5th DCA 2006)); see also Lopez v. State, 68 So.3d 332, 334 (Fla. 5th DCA 2011). In finding that Skinner’s appellate counsel’s performance was deficient, the court reasoned that he failed to raise the jury instruction issue and failed to provide the court with notice of conflicting case law from another district. Skinner, 137 So.3d at 1166. The court found that these omissions constituted “a serious error and a substantial deficiency” which “compromised the appellate process to such extent that it undermined this Court’s confidence” in the outcome of the direct appeal. Id. at 1166-67.
Because counsel’s omissions in the instant case are analogous to those in Skinner, we agree that the appellate process was substantially compromised. Counsel *713was tasked with knowing that the instruction was being challenged and that the First District had reached a conflicting decision in Riesel. These issues should have been brought to our attention during the appeal. For these reasons, we grant Pierre’s petition for writ of habeas corpus, vacate his conviction for second-degree murder, and remand for a new trial.
Petition granted; case remanded.
DAMOORGIAN, C.J., WARNER and STEVENSON, JJ., concur.
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Citator
Cited By
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Jevon Hanthony Wimberly v. State, 162 So. 3d 73 (Fla. 4th DCA 2014)…in the law ... numerous cases have held appellate counsel ineffective for failing to raise favorable eases decided by other jurisdictions during the pendency of an appeal that could result in reversal.”) (citation omitted); see also Pierre v. State, 141 So. 3d 711 (Fla. 4th DCA 2014); Skinner v. State, 137 So. 3d 1164, 1166 (Fla. 3d DCA 2014) (granting relief in similar situations). Petitioner was convicted of attempted second-degree murder which was only one step removed from the erroneous instruction on th…
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Pierre v. State, 259 So. 3d 859 (Fla. 4th DCA 2018)
Authorities Cited
- Amos Augustus Williams v. State, 40 So. 3d 72 (Fla. 4th DCA 2010)
- In re Standard Jury Instructions IN Crim. Cases-Report NO. 2007-10, 997 So. 2d 403 (Fla. 2008)
- Riesel v. State, 48 So. 3d 885 (Fla. 1st DCA 2010)
- Evangelista Lopez v. State, 68 So. 3d 332 (Fla. 5th DCA 2011)
- Granberry v. State, 919 So. 2d 699 (Fla. 5th DCA 2006)
- Morgan v. State, 42 So. 3d 862 (Fla. 4th DCA 2010)
- Skinner v. State, 137 So. 3d 1164 (Fla. 3d DCA 2014)
- Pierre v. State, 90 So. 3d 892 (Fla. 4th DCA 2012)