Dill v. State

• Decision Date: 27 January 2012
• Docket Number: No. 5D11–1162.,5D11–1162.
• Parties: Tyrone DILL, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

79 So.3d 849

Tyrone DILL, Petitioner,
v.
STATE of Florida, Respondent.

No. 5D11–1162.

District Court of Appeal of Florida, Fifth District.

Jan. 27, 2012.

[79 So.3d 850]

Tyrone Dill, Milton, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Respondent.

COHEN, J.

Petitioner, Tyrone Dill, has filed a petition for writ of habeas corpus alleging ineffective assistance of appellate counsel. Charged with attempted first-degree murder with a firearm, Dill was convicted of the lesser-included offense of attempted second-degree murder with a firearm and one count of aggravated assault with a firearm. Dill's petition concerns only the attempted second-degree murder with a firearm count.

In his petition, Dill alleges that appellate counsel rendered ineffective assistance when appellate counsel failed to seek supplemental briefing as a result of the First District Court of Appeal's decision in Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009), which held that the standard manslaughter by act jury instruction, Florida Standard Jury Instruction (Criminal) 7.7, improperly imposed an additional element of intent to kill and was therefore fundamentally erroneous. Dill contends that appellate counsel should have filed a supplemental brief based on Montgomery, raising the issue of whether the attempted voluntary manslaughter jury instruction given in his trial was fundamental error.

In Montgomery, 70 So.3d 603, the First District held that the standard manslaughter by act jury instruction improperly imposed an additional element of intent to kill and was therefore fundamentally erroneous. The First District's decision in Montgomery was not directly on point in regard to Dill's case. The decision concerned Standard Jury Instruction in Criminal Cases 7.7 pertaining to manslaughter, whereas Dill's case involved Standard Jury Instruction in Criminal Cases 6.6, pertaining to attempted voluntary manslaughter. However, in Lamb v. State, 18 So.3d 734, 735 (Fla. 1st DCA 2009), the First District applied its reasoning in Montgomery to the standard attempted voluntary manslaughter instruction.

We find appellate counsel should have raised the issue before this Court's decision in petitioner's direct appeal was final, even though Montgomery was alleged to be in conflict with a prior opinion issued by this Court. Claims of ineffective assistance of appellate counsel are appropriately presented in a petition for writ of habeas corpus, and the criteria for analyzing

[79 So.3d 851]

such claims parallel the Strickland¹ standard for ineffective trial counsel. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). Accordingly, to grant habeas relief based on ineffective assistance of appellate counsel, this Court must determine:

[F]irst, 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...