Gayle v. State

District Court of Appeal of Florida

Gayle v. State

84 So. 3d 364, 2012 WL 669407, 2012 Fla. App. LEXIS 3351

CourtDistrict Court of Appeal of Florida

DecidedMarch 2, 2012

DocketNo. 5D11-3086

StatusPublished

This text of 84 So. 3d 364 (Gayle v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gayle v. State, 84 So. 3d 364, 2012 WL 669407, 2012 Fla. App. LEXIS 3351 (Fla. Ct. App. 2012).

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Opinion

PER CURIAM.

Petitioner, Travius Gayle [“Gayle”], seeks a second appeal, alleging ineffective assistance of appellate counsel. An Anders brief was originally filed in 2009, and this court affirmed the judgment and sentence in 2009. See Gayle v. State, 17 So.3d 1240 (Fla. 5th DCA 2009).

Gayle has raised five claims of ineffective assistance of appellate counsel. There is merit in only one. This is another State v. Montgomery, 39 So.3d 252 (Fla.2010) fundamental error problem. The trial court gave the standard jury instruction for manslaughter by act, including the erroneous reference to “intent to kill.” Although the Supreme Court’s opinion in Montgomery had not been issued by the time Gayle’s appeal was final on October 7, 2009, the First District’s Montgomery¹ decision finding fundamental error and certifying conflict with this Court’s decision in Barton v. State, 507 So.2d 638 (Fla. 5th DCA 1987) had been published in February 2009. We are bound to find that appellate counsel was ineffective in failing to raise the issue. Lopez v. State, 68 So.3d 332 (Fla. 5th DCA 2011). We accordingly grant the belated appeal, reverse the conviction of second-degree murder and remand for a new trial on that count alone.

REVERSED and REMANDED.

ORFINGER, C.J., GRIFFIN and SAWAYA, JJ., concur.

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PER CURIAM.

Petitioner, Travius Gayle [“Gayle”], seeks a second appeal, alleging ineffective assistance of appellate counsel. An Anders brief was originally filed in 2009, and this court affirmed the judgment and sentence in 2009. See Gayle v. State, 17 So.3d 1240 (Fla. 5th DCA 2009).

Gayle has raised five claims of ineffective assistance of appellate counsel. There is merit in only one. This is another State v. Montgomery, 39 So.3d 252 (Fla.2010) fundamental error problem. The trial court gave the standard jury instruction for manslaughter by act, including the erroneous reference to “intent to kill.” Although the Supreme Court’s opinion in Montgomery had not been issued by the time Gayle’s appeal was final on October 7, 2009, the First District’s Montgomery¹ decision finding fundamental error and certifying conflict with this Court’s decision in Barton v. State, 507 So.2d 638 (Fla. 5th DCA 1987) had been published in February 2009. We are bound to find that appellate counsel was ineffective in failing to raise the issue. Lopez v. State, 68 So.3d 332 (Fla. 5th DCA 2011). We accordingly grant the belated appeal, reverse the conviction of second-degree murder and remand for a new trial on that count alone.

REVERSED and REMANDED.

ORFINGER, C.J., GRIFFIN and SAWAYA, JJ., concur.

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84 So. 3d 364, 2012 WL 669407, 2012 Fla. App. LEXIS 3351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gayle-v-state-fladistctapp-2012.

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