EDNERE FRANCOIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ednere Francois petitions for relief from an ineffective assistance of appellate counsel claim, arguing his appellate counsel failed to preserve a conflict certification issue regarding jury instructions on attempted manslaughter. The court grants the petition and vacates his convictions for attempted second-degree murder, finding appellate counsel deficient for failing to request certification of conflict or cite the court's Williams decision.
The court held that appellate counsel was deficient in failing to preserve Francois's ability to seek further review by not requesting certification of the conflict or citing the Williams decision. Had counsel done so, Francois would have obtained the same relief ultimately granted by the Florida Supreme Court's decision in Williams.
[1] Appellate counsel is ineffective for failing to preserve a conflict with controlling precedent for further review.
[2] Appellate counsel's failure to cite a controlling Florida Supreme Court decision in a direct appeal constitutes ineffective assistance.
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Join FLexlaw to unlock all legal intelligence“Appellate counsel was deficient in failing to preserve Francois' ability to seek further review in the Florida Supreme Court.”
Establishes the core deficiency finding regarding appellate counsel's failure to request conflict certification or cite the Williams decision
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Join FLexlaw to unlock all legal intelligenceFrancois was convicted by jury of two counts of attempted second-degree murder. At trial, the court gave a standard jury instruction on attempted mans…
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We grant Ednere Francois’ petition alleging ineffective assistance of appellate counsel. Francois was convicted after jury trial of two counts of attempted second degree murder. On direct appeal, appellate counsel argued that the trial court committed fundamental error in giving the standard jury instruction on attempted manslaughter, a lesser offense only one step removed. This Court affirmed without explanation. Francois v. State, 85 So.3d 497 (Fla. 4th DCA 2012) (table).
At the time of the direct appeal, the First District Court of Appeal had extended Montgomery v. State, 70 So.3d 603, 608 (Fla. 1st DCA 2009), approved, 39 So.3d 252 (Fla.2010), to the attempted voluntary manslaughter jury instruction. Lamb v. State, 18 So.3d 734, 735 (Fla. 1st DCA 2009). We certified conflict with Lamb in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), which was ultimately quashed by Williams v. State, 123 So.3d 23 (Fla. 2013).
Francois argues that counsel was ineffective in failing to request certification of the conflict in his ease or a citation to this Court’s decision in Williams. We agree.
We have granted relief in similar situations. See Wimberly v. State, — So.3d -, 2014 WL 4328067, 39 Fla. L. Weekly D1884 (Fla. 4th DCA Sept. 3, 2014) (granting ineffective assistance of appellate counsel petition for failure to raise Lamb and argue the fundamental error in the jury instruction); Walden v. State, — So.3d -, 2014 WL 4840751, 39 Fla. L. Weekly D2069 (Fla. 4th DCA Oct. 1, 2014) (granting habeas corpus where conflict was not certified and no citation was provided to the conflict case).
Appellate counsel was deficient in failing to preserve Francois’ ability to seek further review in the Florida Supreme Court. We have reversed and ordered a new trial in a number of cases that were remanded following the Florida Supreme Court’s decision in Williams. 1 If counsel had requested certification of the conflict, or a citation to our decision in Williams, Francois would have obtained the same relief.
We have considered the State’s arguments in this proceeding and find them to be without merit. As in Wimberly, although Francois argued mistaken identity at trial, the issue of intent was disputed in this murder trial. — So.3d at-, 39 Fla. L. Weekly at D1885. The State’s argument that trial counsel invited the error by requesting the erroneous instruction overlooks the fact that the defendant in Williams had also requested the instruction. 123 So.3d at 25.
We therefore grant the petition. Because a new appeal would be redundant, we vacate the convictions for attempted second degree murder and remand for a new trial.
Petition granted.
STEVENSON, TAYLOR and GERBER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited (15 total)
- State v. Montgomery, 39 So. 3d 252 (Fla. 2010)
- Amos Augustus Williams v. State, 40 So. 3d 72 (Fla. 4th DCA 2010)
- Amos Augustus Williams v. State, 123 So. 3d 23 (Fla. 2013)
- Montgomery v. State, 70 So. 3d 603 (Fla. 1st DCA 2009)
- Lamb v. State, 18 So. 3d 734 (Fla. 1st DCA 2009)
- Morgan v. State, 132 So. 3d 930 (Fla. 4th DCA 2014)
- COX v. State, 132 So. 3d 956 (Fla. 4th DCA 2014)
- Coriolan v. State, 137 So. 3d 1080 (Fla. 4th DCA 2014)
- Lorenza Sessions v. State, 137 So. 3d 1167 (Fla. 4th DCA 2014)
- Lopez v. State, 138 So. 3d 488 (Fla. 4th DCA 2014)