Skinner v. State, 3D13–1799.
| Citation | 137 So.3d 1164 |
| Decision Date | 09 April 2014 |
| Docket Number | No. 3D13–1799.,3D13–1799. |
| Parties | William SKINNER, Appellant/Petitioner, v. The STATE of Florida, Appellee/Respondent. |
| Court | Court of Appeal of Florida (US) |
OPINION TEXT STARTS HERE
Deana K. Marshall, Riverview, for appellant/petitioner.
Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee/respondent.
Before LAGOA, EMAS and FERNANDEZ, JJ.
ON MOTION FOR REHEARING, CERTIFICATION OF CONFLICT AND CLARIFICATION
We deny the motion for rehearing but withdraw the original opinion and substitutethis opinion in its place for purposes of clarification. We deny the motion for certification of conflict.
William Skinner seeks habeas corpus relief on various grounds, one of which warrants reversal. We grant the petition and remand the cause for a new trial on the attempted manslaughter counts only because (1) the attempted manslaughter by act instruction read to the jury was the pre-Williams instruction 1 that the Florida Supreme Court determined to be per se fundamental error for which Skinner's trial counsel raised no objection below, and because (2) Skinner's appellate counsel failed to raise the issue on appeal.
A jury convicted Skinner of attempted second-degree murder with a firearm, one step removed from the lesser included offense of attempted manslaughter by act. It also convicted Skinner of burglary while armed with a firearm. Skinner filed a direct appeal, and this Court affirmed Skinner's conviction and sentence.2
To grant habeas relief based on ineffective assistance of appellate counsel grounds, this Court must apply a two-prong analysis. First, the petitioner must show that the alleged omissions are of such magnitude as to constitute serious error or a substantial deficiency falling measurably outside the range of professionally acceptable performance. See Connor v. State, 979 So.2d 852, 869 (Fla.2007). Second, the petitioner must show that the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result. Id.
This Court recognizes that appellate counsel is not required to anticipate changes in the law, however “there are cases that hold that appellate counsel is ineffective for failing to raise favorable cases decided by other jurisdictions during the pendency of an appeal, which could result in a reversal.” Granberry v. State, 919 So.2d 699, 701 (Fla. 5th DCA 2006). See also Dill v. State, 79 So.3d 849, 851 (Fla. 5th DCA 2012); Lopez v. State, 68 So.3d 332, 334 (Fla. 5th DCA 2011). During the pendency of Skinner's appeal in this Court, the issue of whether the Florida jury instruction on attempted manslaughter by act constituted fundamental error had not yet been decided. The Florida Supreme Court ultimately decided the issue on review of Lamb v. State, 18 So.3d 734 (Fla. 1st DCA 2009) and Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), quashed,123 So.3d 23 (Fla.2013), both of which were in direct conflict. The Florida Supreme Court approved the First District's decision in Lamb, and quashed Williams.Williams, 40 So.3d at 72.
Skinner correctly argues that he is entitled to relief on the attempted manslaughter jury instruction issue. The trial court committed fundamental error when it gave the standard jury instruction on attempted manslaughter by act. See Williams v. State, 123 So.3d 23 (Fla.2013). Furthermore, Skinner's appellate counsel's performance was deficient because he failed to raise the jury instruction issue and failed to provide this Court with notice of the conflict between the Florida District Courts of Appeal. Lopez, 68 So.3d at 334;Dill, 79 So.3d at 851. This constituted a serious error and a substantial deficiency that fell outside the range of professionally acceptable performance. Appellate counsel's failure compromised the appellate process to such extent that it undermined this Court's confidence in the correctness of this Court's decision in...
To continue reading
Request your trial
-
Molina v. State
...compromised the appellate process to such a degree as to undermine confidence in the correctness of the result. Id.Skinner v. State, 137 So.3d 1164, 1166 (Fla. 3d DCA 2014). As such, Molina must demonstrate that appellate counsel's performance was deficient, and that the deficiency resulted......
-
Gerome v. State
...compromised the appellate process to such a degree as to undermine confidence in the correctness of the result. Id. Skinner v. State, 137 So. 3d 1164, 1166 (Fla. 3d DCA 2014). It is well-entrenched under Florida law that "appellate counsel cannot be deemed ineffective for failing to raise n......
-
Phelps v. State
...and the failure to raise it in the direct appeal, fell outside the range of professionally acceptable performance. See Skinner v. State, 137 So. 3d 1164 (Fla. 3d DCA 2014) (holding appellate counsel's failure to raise as fundamental error the trial court's erroneous (but unobjected-to) jury......
-
Wimberly v. State
...that could result in reversal.”) (citation omitted); see also Pierre v. State, 141 So.3d 711 (Fla. 4th DCA 2014) ; Skinner v. State, 137 So.3d 1164, 1166 (Fla. 3d DCA 2014) (granting relief in similar situations).Petitioner was convicted of attempted second-degree murder which was only one ......