Aramis Gonzalez-Azcuy v. State of Florida

• Court: District Court of Appeal of Florida
• Decided: September 24, 2025
• Docket: 3D2025-0529
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed September 24, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D25-0529 Lower Tribunal No. F19-22367 ________________

Aramis Gonzalez-Azcuy, Petitioner,

vs.

State of Florida, Respondent.

A Case of Original Jurisdiction – Habeas Corpus.

Aramis Gonzalez-Azcuy, in proper person.

James Uthmeier, Attorney General, and Daniel Colmenares, Assistant Attorney General, for respondent.

Before LOBREE, BOKOR and GOODEN, JJ.

BOKOR, J. Aramis Gonzalez-Azcuy seeks habeas relief based on ineffective

assistance of appellate counsel in failing to appeal a purportedly defective

verdict form. Gonzalez-Azcuy argues that appellate counsel was ineffective

for failing to raise a defect in the verdict form, causing confusion as to

whether the jury intended to convict him for attempted felony murder or

aggravated battery. While we agree that the jury form could have been better

drafted, counsel failed to raise a contemporaneous objection. And because

the record reveals no possibility of juror confusion, there was no fundamental

error. With no possibility of fundamental error, no relief lies against appellate

counsel for ineffective assistance for failing to make a losing argument.

Appellate counsel is only defective when his or her omission of an

issue on appeal falls below the range of professionally acceptable conduct.

See Serrano v. State, 225 So. 3d 737, 757 (Fla. 2017) (“In order to grant

habeas relief on ineffectiveness of appellate counsel, this Court must

determine ‘first, 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 as to undermine confidence in the correctness of the result.’” (quoting

in part Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986))); Rutherford v.

2 Moore, 774 So. 2d 637, 644 (Fla. 2000) (“The failure to raise meritless claims

does not render appellate counsel’s performance ineffective.”). As explained

below, the jury instruction issue is a meritless claim.

Gonzalez-Azcuy misreads both the charging document and the verdict

form (and the explanation of the form by the judge) and ignores the statutory

construction of the charges. Section 782.051(1), Florida Statutes, sets forth

that any person that attempts to perpetrate a felony enumerated by section

782.04(3), and commits a further intentional act that could but does not

cause death, commits attempted felony murder. Robbery is enumerated in

section 782.04(3)(d), Florida Statutes. And aggravated battery is an

intentional act that could, but need not, cause death. § 784.045(1)(a), Fla.

Stat. (defining aggravated battery as a battery wherein a person

“[i]ntentionally or knowingly causes great bodily harm” or “[u]ses a deadly

weapon”).

So to properly convict Gonzalez-Azcuy of attempted felony murder, the

State could prove that he robbed or attempted to rob the victim, and also

committed an aggravated battery that did not cause death, by (1)

intentionally causing great bodily harm, or (2) using a deadly weapon. The

charging document laid the predicate for all these elements. Specifically, it

alleged that during the commission of a robbery Gonzalez-Azcuy possessed

3 and used a hammer to hit his victim, causing great bodily harm. The deadly

weapon was the hammer.

While the verdict form is not a model form, it contained all the

necessary elements and was unobjected to at trial. The trial judge explained

the elements of the crimes and read the standard jury instructions, also

unobjected to at trial. Both the plain language of the jury form and the judge’s

explicit instructions make clear that if the jury found the defendant guilty of

only aggravated battery as a lesser included offense, it would not have

checked the box for attempted felony murder. The verdict form stated that

the jury was to check only one of the following boxes under count one: “The

Defendant is Guilty of Attempted Felony Murder with a Deadly Weapon or

Aggravated Battery,” “The Defendant is Guilty of Attempted Manslaughter by

Act as a lesser included offense,” “The Defendant is Guilty of Aggregated

Battery as a lesser included offense,” or “The Defendant is Not Guilty of

Attempted Felony Murder with a Deadly Weapon or Aggravated Battery.”

The jury checked the first box, “The Defendant is Guilty of Attempted Felony

Murder with a Deadly Weapon or Aggravated Battery.”1

1 The jury also checked “YES” next to both mandatory questions under that box: “1. Did the Defendant carry, use, display or threaten to use a deadly weapon during the commission of the crime?” and “2. Did the Defendant cause great bodily harm during the commission of the crime?”

4 Gonzalez-Azcuy contends that the jury could have been confused by

the disjunctive “or” in “The Defendant is Guilty of Attempted Felony Murder

with a Deadly Weapon or Aggravated Battery,” and meant to convict him only

of aggravated battery as a lesser included offense. But the verdict form and

the jury instructions read by the judge belie any such confusion. See Tsuji v.

Fleet, 366 So. 3d 1020, 1025 (Fla. 2023) (“[T]he meaning of a word cannot

be determined in isolation, but must be drawn from the context in which it is

used.” (quotation omitted)). The jury did not check any other box or answer

any other questions under count one, including, importantly, the box for “The

Defendant is Guilty of Aggravated Battery as a lesser included offense.”

Further, under count two, the jury checked the box “The Defendant is

Guilty of Robbery” and answered the mandatory question under that box

indicating that “the Defendant carr[ied], use[d], display[ed] or threaten[ed] to

use . . . [a] Deadly Weapon.” As explained above, the robbery was the

predicate felony to the attempted felony murder. We decline to address

whether, had there been a contemporaneous objection to the jury form, the

trial judge would have abused its discretion in failing to modify the language

and structure. But what is clear is there is no fundamental error here. See

Husarek v. State, 413 So. 3d 1004, 1005 (Fla. 3d DCA 2025) (explaining that

“jury instructions are subject to the contemporaneous objection rule. Absent

5 an objection at trial, an error may only be raised on appeal if it amounts to

fundamental error”). Based on the charging documents, the evidence

presented at trial, the judge’s instructions, and the jury’s clear elections on

the verdict form, there was no confusion and no possibility of “error” that

“reach[ed] down into the validity of the trial itself to the extent that a verdict

of guilty could not have been obtained without the assistance of the alleged

error.” Brown v. State, 124 So. 2d 481, 484 (Fla. 1960). There was no basis

for an appeal and therefore no basis to deem appellate counsel ineffective

for failing to raise a losing issue. See Rutherford, 774 So. 2d at 644.

Petition denied.