ARAMIS GONZALEZ-AZCUY

v.

STATE OF FLORIDA

Third District Court of Appeal State of Florida

Opinion filed September 24, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D25-0529 Lower Tribunal No. F19-22367 ________________

Aramis Gonzalez-Azcuy, Petitioner,

vs.

State of Florida, Respondent.

A Case of Original Jurisdiction – Habeas Corpus.

Aramis Gonzalez-Azcuy, in proper person.

James Uthmeier, Attorney General, and Daniel Colmenares, Assistant Attorney General, for respondent.

Before LOBREE, BOKOR and GOODEN, JJ.

BOKOR, J.

2 Aramis Gonzalez-Azcuy seeks habeas relief based on ineffective assistance of appellate counsel in failing to appeal a purportedly defective verdict form. Gonzalez-Azcuy argues that appellate counsel was ineffective for failing to raise a defect in the verdict form, causing confusion as to whether the jury intended to convict him for attempted felony murder or aggravated battery. While we agree that the jury form could have been better drafted, counsel failed to raise a contemporaneous objection. And because the record reveals no possibility of juror confusion, there was no fundamental error. With no possibility of fundamental error, no relief lies against appellate counsel for ineffective assistance for failing to make a losing argument. Appellate counsel is only defective when his or her omission of an issue on appeal falls below the range of professionally acceptable conduct. See Serrano v. State, 225 So. 3d 737, 757 (Fla. 2017) (“In order to grant habeas relief on ineffectiveness of appellate counsel, this Court must determine ‘first, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.’” (quoting in part Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986))); Rutherford v.

3 Moore, 774 So. 2d 637, 644 (Fla. 2000) (“The failure to raise meritless claims does not render appellate counsel’s performance ineffective.”). As explained below, the jury instruction issue is a meritless claim. Gonzalez-Azcuy misreads both the charging document and the verdict form (and the explanation of the form by the judge) and ignores the statutory construction of the charges. Section 782.051(1), Florida Statutes, sets forth that any person that attempts to perpetrate a felony enumerated by section 782.04(3), and commits a further intentional act that could but does not cause death, commits attempted felony murder. Robbery is enumerated in section 782.04(3)(d), Florida Statutes. And aggravated battery is an intentional act that could, but need not, cause death. § 784.045(1)(a), Fla. Stat. (defining aggravated battery as a battery wherein a person “[i]ntentionally or knowingly causes great bodily harm” or “[u]ses a deadly weapon”). So to properly convict Gonzalez-Azcuy of attempted felony murder, the State could prove that he robbed or attempted to rob the victim, and also committed an aggravated battery that did not cause death, by (1) intentionally causing great bodily harm, or (2) using a deadly weapon. The charging document laid the predicate for all these elements. Specifically, it alleged that during the commission of a robbery Gonzalez-Azcuy possessed

1 The jury also checked “YES” next to both mandatory questions under that box: “1. Did the Defendant carry, use, display or threaten to use a deadly weapon during the commission of the crime?” and “2. Did the Defendant cause great bodily harm during the commission of the crime?”