TRAVIUS GAYLE, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Appellate counsel was ineffective for failing to raise a fundamental error regarding an erroneous jury instruction on intent to kill in a manslaughter charge, requiring reversal and remand for a new trial.
Appellate counsel was ineffective for failing to raise a fundamental error claim regarding an erroneous jury instruction that included an improper reference to 'intent to kill' in a manslaughter instruction.
[1] Appellate counsel is ineffective when failing to raise a fundamental error regarding an erroneous jury instruction on manslaughter that includes an improper reference to…
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Join FLexlaw to unlock all legal intelligenceGayle was convicted of second-degree murder after trial. An Anders brief was filed on direct appeal in 2009, and the conviction was affirmed. Gayle th…
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Petitioner, Travius Gayle [“Gayle”], seeks a second appeal, alleging ineffective assistance of appellate counsel. An Anders brief was originally filed in 2009, and this court affirmed the judgment and sentence in 2009. See Gayle v. State, 17 So.3d 1240 (Fla. 5th DCA 2009).
Gayle has raised five claims of ineffective assistance of appellate counsel. There is merit in only one. This is another State v. Montgomery, 39 So.3d 252 (Fla.2010) fundamental error problem. The trial court gave the standard jury instruction for manslaughter by act, including the erroneous reference to “intent to kill.” Although the Supreme Court’s opinion in Montgomery had not been issued by the time Gayle’s appeal was final on October 7, 2009, the First District’s Montgomery1 decision finding fundamental error and certifying conflict with this Court’s decision in Barton v. State, 507 So.2d 638 (Fla. 5th DCA 1987) had been published in February 2009. We are bound to find that appellate counsel was ineffective in failing to raise the issue. Lopez v. State, 68 So.3d 332 (Fla. 5th DCA 2011). We accordingly grant the belated appeal, reverse the conviction of second-degree murder and remand for a new trial on that count alone.
REVERSED and REMANDED.
ORFINGER, C.J., GRIFFIN and SAWAYA, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Montgomery, 39 So. 3d 252 (Fla. 2010)
- Montgomery v. State, 70 So. 3d 603 (Fla. 1st DCA 2009)
- Barton v. State, 507 So. 2d 638 (Fla. 5th DCA 1987)
- Evangelista Lopez v. State, 68 So. 3d 332 (Fla. 5th DCA 2011)