SHARA N. COOPER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Cooper petitions for relief based on ineffective assistance of appellate counsel, claiming her appellate attorney failed to raise a fundamental error regarding a defective jury instruction on the lesser-included offense of manslaughter. The court grants the petition, finding that the same erroneous instruction previously identified as fundamental error in Montgomery v. State was given to Cooper's jury, and her appellate counsel's failure to raise this issue constituted ineffective assistance.
The court holds that appellate counsel was ineffective in failing to raise the Montgomery issue. Because the erroneous jury instruction constitutes fundamental error per se reversible and not subject to harmless error analysis, the conviction for second-degree murder is reversed, the sentence on that count is vacated, and the case is remanded for a new trial or plea negotiations.
[1] Appellate counsel is ineffective for failing to raise an issue that constitutes fundamental error per se and is not subject to harmless error analysis.
[2] An erroneous jury instruction on a lesser-included offense, which makes it more difficult to establish that offense, constitutes fundamental error requiring a new trial.
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Join FLexlaw to unlock all legal intelligence“Because petitioner demonstrates that appellate counsel failed to raise an issue which the Florida Supreme Court has held constitutes fundamental error that is per se reversible and not subject to harmless error analysis, we grant the petition.”
Establishes the standard for the ineffective assistance claim and the basis for granting relief.
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Join FLexlaw to unlock all legal intelligenceA jury convicted Cooper of second-degree murder. The trial court instructed the jury on the lesser-included offense of manslaughter by act using a def…
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Shara N. Cooper has filed a petition which claims that she received ineffective assistance of appellate counsel in her direct appeal in Cooper v. State, 45 So.3d 490 (Fla. 4th DCA 2010). Because petitioner demonstrates that appellate counsel failed to raise an issue which the Florida Supreme Court has held constitutes fundamental error that is per se reversible and not subject to harmless error analysis, we grant the petition.
A jury convicted petitioner of second-degree murder. The court instructed the jury regarding the lesser-included offense of manslaughter by act using the same standard jury instruction that was held to be defective in Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009), approved, 39 So.3d 252 (Fla.2010). The erroneous instruction provided that to prove manslaughter by act the State had to prove that defendant “intentionally caused” the death of the victim. Because the erroneous instruction made it more difficult to establish the lesser-included offense that was only one step removed from the second-degree murder conviction, the Florida Supreme Court held that use of the instruction constituted fundamental error, not subject to harmless error analysis, and required a new trial as to the murder count. 39 So.3d at 359.
As in Montgomery, the jury in petitioner’s case was given the same erroneous standard jury instruction and the jury convicted petitioner of second-degree murder, an offense only one step removed from manslaughter.1 The jury convicted petitioner of other offenses which are not at issue and which are not impacted by this proceeding.
The initial brief in petitioner’s appeal was filed more than three months after the First District Court of Appeal decided Montgomery. The Florida Supreme Court issued its opinion in Montgomery while petitioner’s case remained in the pipeline, that is, before this court had decided petitioner’s appeal.
We agree with the various appellate decisions holding that appellate counsel was ineffective in failing to have raised the Montgomery issue under similar circumstances. Ferrer v. State, 69 So.3d 360 (Fla. 2d DCA 2011); Lopez v. State, 68 So.3d 332 (Fla. 5th DCA 2011); Curry v. State, 64 So.3d 152 (Fla. 2d DCA 2011); Hodges v. State, 64 So.3d 142 (Fla. 5th DCA 2011); Del Valle v. State, 52 So.3d 16 (Fla. 2d DCA 2010); Toby v. State, 29 So.3d 1138 (Fla. 1st DCA 2009).
Because a new appeal would be redundant in this case, we reverse the conviction for second-degree murder, vacate the sentence on that count, and remand for a new *1000trial or plea negotiations. See, e.g., Ferrer, 69 So.3d at 362; Del Valle, 62 So.3d at 19. Petitioner’s other convictions in this case are not impacted by this decision.
Petition granted.
MAY, C.J., WARNER and CIKLIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited (15 total)
- State v. Montgomery, 39 So. 3d 252 (Fla. 2010)
- Montgomery v. State, 70 So. 3d 603 (Fla. 1st DCA 2009)
- In re Standard Jury Instructions IN Crim. Cases-Report NO. 2007-10, 997 So. 2d 403 (Fla. 2008)
- In re Amendments TO Standard Jury Instructions IN Crim. Cases - Instruction 7.7, 41 So. 3d 853 (Fla. 2010)
- Evangelista Lopez v. State, 68 So. 3d 332 (Fla. 5th DCA 2011)
- Shara N. Cooper v. State, 45 So. 3d 490 (Fla. 4th DCA 2010)
- Daniels v. State, 72 So. 3d 227 (Fla. 2d DCA 2011)
- Toby v. State, 29 So. 3d 1138 (Fla. 1st DCA 2009)
- In re Amendments TO Standard Jury Instructions IN Crim. Cases-Instruction 7.7, 75 So. 3d 210 (Fla. 2011)
- Curry v. State, 64 So. 3d 152 (Fla. 2d DCA 2011)