Coleman v. State
| Decision Date | 05 April 2013 |
| Docket Number | No. 2D12–2724.,2D12–2724. |
| Citation | 110 So.3d 971 |
| Parties | Joseph COLEMAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Joseph Coleman raises two grounds for relief in his petition alleging ineffective assistance of appellate counsel filed pursuant to Florida Rule of Appellate Procedure 9.141(d). We deny without comment the claim raised in ground two of the petition. In ground one, Coleman alleges that counsel was ineffective for failing to argue that the standard instruction provided to the jury for attempted manslaughter by act constituted fundamental error. We agree that appellate counsel was ineffective in failing to raise this issue, and we conclude that Coleman is entitled to a belated direct appeal on this issue only.
We first note that subsequent to the filing of the present petition, the supreme court in Williams v. State, ––– So.2d ––––, 38 Fla. L. Weekly S99 (Fla. Feb. 14, 2013), held that the use of the standard attempted manslaughter by act instruction constituted fundamental error when the defendant was convicted of attempted second-degree murder because the instruction improperly contained an intent-to-kill element 1 and the offense of attempted manslaughter by act is not more than one step removed from the offense of attempted second-degree murder. Id. at –––– – ––––, S100–02. In determining that the attempted manslaughter by act instruction was fundamentally erroneous under the facts of that case, the court relied on its opinion in State v. Montgomery, 39 So.3d 252, 258 (Fla.2010), which held that the use of the then-standard manslaughter by act instruction constituted fundamental error when Montgomery was convicted of second-degree murder because it contained an additional element of intent to kill. Williams, ––– So.2d at ––––, 38 Fla. L. Weekly at S101. Citing to Houston v. State, 87 So.3d 1 (Fla. 2d DCA 2011), the supreme court noted that this court was one of the four District Courts of Appeal to hold that the standard manslaughter by act instruction was fundamentally erroneous because it added an intent-to-kill element. Williams, ––– So.2d at ––––, 38 Fla. L. Weekly at S102.
We must now determine whether Coleman's counsel was ineffective in failing to raise the error in the attempted manslaughter instruction. Our decision in this case is controlled by our opinion in Deravil v. State, 98 So.3d 1172, 1173–74 (Fla. 2d DCA 2012), wherein we held that Deravil's appellate counsel was ineffective in failing to argue that the attempted manslaughter instruction was fundamentally erroneous. Deravil was charged with attempted first-degree premeditated murder and was convicted of the lesser-included offense of attempted second-degree murder with a weapon.2 Both attempted second-degree murder and attempted manslaughter by act are necessarily lesser-included offenses of attempted first-degree premeditated murder. Id. at 1173. Deravil's jury was provided the standard attempted manslaughter by act instruction which improperly imposed an additional element of intent to kill. Id. Coleman was charged with attempted first-degree murder and convicted of attempted second-degree murder with a firearm. 3 Coleman's jury was also provided the standard attempted manslaughter by act instruction.
The initial brief in Deravil's direct appeal was filed subsequent to the issuance of the supreme court's opinion in Montgomery and subsequent to the issuance of Lamb v. State, 18 So.3d 734 (Fla. 1st DCA 2009), approved by Williams, ––– So.2d at ––––, 38 Fla. L. Weekly at S100, wherein the First District...
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Bull v. State
...District.Nov. 27, 2013. OPINION TEXT STARTS HERE Affirmed. See Sanders v. State, 944 So.2d 203 (Fla.2006); Coleman v. State, 110 So.3d 971 (Fla. 2d DCA 2013); Plott v. State, 86 So.3d 516 (Fla. 2d DCA 2012); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Southers v. State, 961 So.2d 992 ......
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Franklin v. State
...counsel's failure to raise this fundamental error constituted deficient performance in the direct appeal. See Coleman v. State, 110 So.3d 971, 972 (Fla. 2d DCA 2013) ("Coleman's appellate counsel rendered ineffective assistance in failing to argue that the attempted manslaughter by act inst......
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Sanders v. State, 2D13–967.
...is entitled to a new trial on the attempted homicide charge. See Pierce v. State, 121 So.3d 1091 (Fla. 5th DCA 2013); Coleman v. State, 110 So.3d 971 (Fla. 2d DCA 2013); McClendon v. State, 93 So.3d 1131 (Fla. 2d DCA 2012); Arnold v. State, 93 So.3d 1094 (Fla. 2d DCA 2012). There being no r......
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Coleman v. State, 2D13–2700.
...lesser-included offense of attempted manslaughter by act constituted fundamental error requiring a new trial. Coleman v. State, 110 So.3d 971 (Fla. 2d DCA 2013) (per curiam). We granted Mr. Coleman a belated direct appeal on this issue only, which is the subject of this proceeding. We now r......