KHAMBRIEL FLUKER, PETITIONER,
v.
EDWIN BUSS, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, RESPONDENT
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Appellate counsel was ineffective for failing to argue an erroneous jury instruction, requiring a new trial.
Petitioner sought habeas corpus, claiming appellate counsel failed to raise an issue regarding an erroneous jury instruction on direct appeal. The dir…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Erroneous Jury Instruction cases and more on FLexlaw
Khambriel Fluker has petitioned for a writ of habeas corpus alleging ineffective assistance of appellate counsel. Fluker asserts that his appellate counsel was ineffective for failing to argue that an instruction given to the jury was erroneous pursuant to State v. Montgomery, 89 So.3d 252 (Fla.2010). Fluker’s direct appeal was not concluded until well after Montgomery *504was decided. We agree that appellate counsel for the direct appeal (the Criminal Conflict and Civil Regional Counsel) was ineffective for failing to raise this issue. We therefore grant the petition and remand for a new trial.
The state asserts that an argument similar to the one it raises in its response here is being considered by the Florida Supreme Court in Daniels v. State, SC11-2170 (review granted Feb. 3, 2012) (oral argument Aug. 2, 2012). In view of this similarity, at the state’s request, we also certify the following question:
WHETHER A MANSLAUGHTER INSTRUCTION, ALTHOUGH ERRONEOUS UNDER State v. Montgomery, 39 So.3d 252 (Fla.2010), AND ITS PROGENY, BUT WHICH NEVERTHELESS, BASED ON THE FACTS AND EVIDENCE PRESENTED AT TRIAL, ENABLES THE JURY TO EXERCISE ITS JURY PARDON POWER, CONSTITUTES FUNDAMENTAL ERROR.
Petition granted; question certified; and remanded for new trial.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Martinez v. State, 123 So. 3d 701 (Fla. 1st DCA 2013)…failure to argue fundamental error, despite trial counsel’s dereliction, has been held to constitute ineffective assistance of counsel. See Spagnolo v. State, 116 So. 3d 599, 605 (Fla. 5th DCA 2013) (granting new trial on one count); Fluker v. Buss, 112 So. 3d 503, 503-04 (Fla. 3d DCA 2012) (ordering new trial); Alexis v. State, 112 So. 3d 144, 145 (Fla. 1st DCA 2013) (ordering second appeal); Cummings v. State, 103 So. 3d 1048, 1048 (Fla. 2d DCA 2013) (ordering new trial); Riley v. State, 25 So. 3d 1, 3-4 (F…
Authorities Cited
- State v. Montgomery, 39 So. 3d 252 (Fla. 2010)