Wimberly v. State
Decision Date | 03 September 2014 |
Docket Number | No. 4D12–2720.,4D12–2720. |
Citation | 162 So.3d 73 |
Parties | Jevon Hanthony WIMBERLY, Petitioner, v. STATE of Florida, Respondent. |
Court | Florida District Court of Appeals |
Jevon Hanthony Wimberly, Crawfordville, pro se.
Pamela Jo Bondi, Attorney General, Tallahassee, Melvin G. Mosier and Matthew Ocksrider, Assistant Attorneys General, West Palm Beach, for respondent.
On Remand from the Florida Supreme Court
This case is on remand following the Florida Supreme Court's January 24, 2014 order in case number SC12–2330. The Supreme Court has quashed our order denying the petition in this case and remanded for reconsideration upon application of Williams v. State, 123 So.3d 23 (Fla.2013).
We grant the petition and conclude that appellate counsel was ineffective in failing to argue fundamental error in the jury instruction that was given for the lesser offense of attempted voluntary manslaughter.1 Pierce v. State, 121 So.3d 1091, 1093 (Fla. 5th DCA 2013) () (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) ( ).
Petitioner was convicted of attempted second-degree murder which was only one step removed from the erroneous instruction on the lesser offense of attempted voluntary manslaughter. We do not agree with the State's argument that the issue of intent was not disputed. Although petitioner argued misidentification at trial, he did not concede the intent with which the shooting was committed. Petitioner was charged with attempted first-degree murder but convicted of a lesser offense. Intent was a disputed issue at trial, and the erroneous instruction was pertinent to an issue that the jury had to consider in order to convict.Cf. Stewart v. State, 420 So.2d 862, 863 (Fla.1982) ( ).
Because a new appeal would be redundant, we vacate the conviction for attempted second degree murder and remand for a new trial.
1 At the time of petitioner's direct appeal from his attempted second-degree murder conviction, the First District had...
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...a new trial. Because it would be manifestly unjust to deny him the same remedy, we grant habeas corpus relief."); Wimberly v. State , 162 So.3d 73, 74–75 (Fla. 4th DCA 2014) (granting relief on remand from the Florida Supreme Court after the Fourth District denied the petition alleging inef......