Jevon Hanthony Wimberly v. State

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014
JEVON HANTHONY WIMBERLY,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
No. 4D12-2720
[September 3, 2014]
Petition alleging ineffective assistance of counsel to the Circuit Court
for the Seventeenth Judicial Circuit, Broward County; John J. Murphy,
III, Judge; L.T. Case No. 06-18716 CF10A.
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
PER CURIAM.
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
1 At the time of petitioner’s direct appeal from his attempted second-degree
murder conviction, the First District had certified the question regarding the
fundamental error in the standard voluntary manslaughter jury instruction.
Montgomery v. State, 70 So. 3d 603, 608 (Fla. 1st DCA 2009). Petitioner’s counsel
Pierce v. State, 121 So. 3d 1091, 1093 (Fla. 5th DCA 2013) (“Although
appellate counsel is not necessarily required to anticipate changes in the
law . . . numerous cases have held appellate counsel ineffective for failing
to raise favorable cases decided by other jurisdictions during the pendency
of an appeal that could result in reversal.”) (citation omitted); see also
Pierre v. State, 39 Fla. L. Weekly D1369 (Fla. 4th DCA July 2, 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 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) (finding no fundamental error in the failure to
instruct on the specific intent element for robbery because defendant
admitted taking the property).
Because a new appeal would be redundant, we vacate the conviction
for attempted second degree murder and remand for a new trial.
WARNER, STEVENSON and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
could have raised the issue which had already been extended to the attempted
voluntary manslaughter instruction by Lamb v. State, 18 So. 3d 734, 735 (Fla.
1st DCA 2009). We did not issue our opinion certifying conflict with Lamb until
after we affirmed the conviction in petitioner’s case. Williams v. State, 40 So. 3d
72, 76 (Fla. 4th DCA 2010).
2