JEVON HANTHONY WIMBERLY, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Jevon Wimberly petitioned for post-conviction relief claiming appellate counsel was ineffective for failing to raise fundamental error regarding a jury instruction on attempted voluntary manslaughter. The Florida Supreme Court remanded the case for reconsideration under Williams v. State, and the Fourth District Court of Appeal granted the petition, finding counsel ineffective and vacating the conviction for a new trial.
The court granted the petition and concluded that appellate counsel was ineffective in failing to argue fundamental error in the jury instruction for attempted voluntary manslaughter. Because intent was a disputed issue at trial and the erroneous instruction was pertinent to an issue the jury had to consider, the conviction was vacated and the case was remanded for a new trial.
[1] Appellate counsel is ineffective for failing to argue fundamental error in a jury instruction on a lesser offense when that instruction was erroneous and pertinent to a d…
[2] A conviction may be vacated and a new trial ordered when appellate counsel is found to have been ineffective for failing to raise a meritorious issue on direct 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“Although appellate counsel is not necessarily required to anticipate changes in the law ... numerous cases have held appellate counsel ineffective for failing to raise favorable cases decided by other jurisdictions during the pendency of an appeal that could result in reversal.”
Establishes the standard for finding appellate counsel ineffective for failing to raise favorable case law
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Join FLexlaw to unlock all legal intelligencePetitioner was convicted of attempted second-degree murder. At trial, petitioner argued misidentification but did not concede the intent with which th…
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On Remand from the Florida Supreme. Court
This case is on remand following the Florida Supreme Court’s January 24, 2014 order in case number SC12-2330. The Supreme Court has quashed our order denying the petition in this case and remanded for reconsideration upon application of Williams v. State, 123 So.3d 23 (Fla.2013).
We grant the petition and conclude that appellate counsel was ineffective in failing to argue fundamental error in the jury instruction that was given for the lesser offense of attempted voluntary manslaughter.1 Pierce v. State, 121 So.3d 1091, 1093 (Fla. 5th DCA 2013) (“Although appellate counsel is not necessarily required to anticipate changes 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 the lesser offense of attempted voluntary manslaughter. We do not agree with the State’s argument that the issue of intent was not disputed. Although peti*75tioner argued misidentifícation at trial, he did not concede the intent with which the shooting was committed. Petitioner was charged with attempted first-degree murder but convicted of a lesser offense. Intent was a disputed issue at trial, and the erroneous instruction was pertinent to an issue that the jury had to consider in order to convict. Cf. Stewart v. State, 420 So.2d 862, 868 (Fla.1982) (finding no fundamental error in the failure to instruct on the specific intent element for robbery because defendant admitted taking the property).
Because a new appeal would be redundant, we vacate the conviction for attempted second degree murder and remand for a new trial.
WARNER, STEVENSON and LEVINE, JJ., concur.
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Citator
Cited By
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Vince E. Wardlow v. State, 212 So. 3d 1091 (Fla. 2d DCA 2017)…and conflict on the issue, Walden could have obtained relief from the Florida Supreme Court and would be entitled to a new trial. Because it would be manifestly unjust to deny him the same remedy, we grant habeas corpus relief.”); Wimberly v. State, 162 So. 3d 73, 74-75 (Fla. 4th DCA 2014) (granting relief on remand from the Florida Supreme Court after the Fourth District denied the petition alleging ineffective assistance of appellate counsel with citation to an opinion holding the erroneous instruction for…
Authorities Cited
- Stewart v. State, 420 So. 2d 862 (Fla. 1982)
- 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)
- Pierce v. State, 121 So. 3d 1091 (Fla. 5th DCA 2013)
- Skinner v. State, 137 So. 3d 1164 (Fla. 3d DCA 2014)
- Pierre v. State, 141 So. 3d 711 (Fla. 4th DCA 2014)