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Banek v. State

Florida Court of Appeal, Second District

November 2, 2011

David BANEK, Petitioner,
v.
STATE of Florida, Respondent.

Page 763

Frances Martinez of Escobar & Associates, P.A., Tampa, for Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Respondent.

DAVIS, Judge.

David Banek was charged with attempted first-degree murder with a weapon. A jury convicted him of the lesser-included offense of attempted second-degree murder with a weapon. This court affirmed the judgment and sentence. See Banek v. State, 11 So.3d 945 (Fla. 2d DCA 2009) (unpublished table decision). Banek subsequently filed a petition pursuant to Florida Rule of Appellate Procedure 9.141(d), alleging solely that appellate counsel was ineffective for failing to argue that the standard jury instruction for attempted manslaughter by act, also known as attempted voluntary manslaughter, constituted fundamental error because it improperly imposed an additional element of an intent to kill. We agree, and we reverse Banek's attempted second-degree murder conviction, vacate the sentence, and remand for new trial.

The evidence presented at trial showed that Banek stabbed the victim with a knife numerous times in the chest. The victim also was stabbed in the hand, lip, and face. As part of the jury charge, the trial court instructed the jury on attempted second-degree murder and attempted manslaughter by act, as both are category one lesser-included offenses of attempted first-degree premeditated murder. See Fla. Std. Jury Instr. (Crim.) 6.2. With regard to attempted manslaughter, the jury was instructed as follows:

To prove the crime of attempted voluntary manslaughter, the State must prove the following element beyond a reasonable doubt:
David Banek committed an act, which was intended to cause the death of Jerome Clark and would have resulted in the death of Jerome Clark, except that someone prevented David Banek from

Page 764

killing Jerome Clark or he failed to do so.

This was the standard jury instruction at the time of trial and still is today. See Fla. Std. Jury Instr. (Crim.) 6.6.[1]

Subsequent to the resolution of the direct appeal in this case, this court has held that the standard attempted manslaughter by act jury instruction constitutes fundamental error. See Houston v. State, --- So.3d ---- (Fla. 2d DCA 2011); Gonzalez v. State, 40 So.3d 60 (Fla. 2d DCA 2010). Both Houston and Gonzalez were based on the Florida Supreme Court's opinion in State v. Montgomery, 39 So.3d 252 (Fla.2010).

In Montgomery, the Florida Supreme Court approved the First District's decision in Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009), which was the first case to hold that the then-standard manslaughter by act instruction was fundamentally erroneous because it imposed an additional element of intent to kill. 39 So.3d at 254. In the direct appeal in the present case, the initial brief was filed on December 16, 2008, and the answer brief was filed on January 5, 2009-both prior to the issuance of the First District's Montgomery opinion. However, because our per curiam affirmance in Banek did not issue until three months after the issuance of the First District's opinion, appellate counsel should have sought to file a supplemental brief. See Ortiz v. State, 905 So.2d 1016 (Fla. 2d DCA 2005).

In Ortiz, this court concluded that appellate counsel performed deficiently in failing to seek supplemental briefing in order to argue that there was fundamental error in the justifiable use of deadly force instruction. 905 So.2d at 1017. This court's conclusion was based on two Fourth District cases that issued subsequent to Ortiz filing his initial brief in his direct appeal but prior to the filing of the answer brief. This court reasoned that although the Fourth District's opinions " ‘ were not available to appellate counsel prior to the completion of her initial Anders brief ..., she should have been aware of them and could have filed a motion to file a supplemental brief.’ " Id. at 1017 (quoting York v. State, 891 So.2d 569, 571 (Fla. 2d DCA 2004)).

In the present case, even though the First District's Montgomery opinion issued subsequent to the filing of both the initial and answer briefs, we conclude that appellate counsel performed deficiently in failing to seek supplemental briefing on the issue of whether the attempted manslaughter by act instruction was fundamentally erroneous.[2] Counsel should have been aware of the First District's Montgomery opinion and should have sought to argue that ...


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