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Marshall v. State

Florida Court of Appeals, Third District

February 28, 2018

James C. Marshall, Petitioner,
v.
The State of Florida, Respondent.

         Not final until disposition of timely filed motion for rehearing.

         A Case of Original Jurisdiction - Habeas Corpus. Lower Tribunal No. 04-10361

          Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for petitioner.

          Pamela Jo Bondi, Attorney General, and Marlon J. Weiss and Michael W. Mervine, Assistant Attorneys General, for respondent.

          Before LOGUE, SCALES and LINDSEY, JJ.

          SCALES, J.

         James Marshall petitions this Court for a writ of habeas corpus pursuant to Florida Rule of Appellate Procedure 9.141(d), claiming that he is entitled to a new trial on the charge of second degree murder based on ineffective assistance of appellate counsel. Specifically, Marshall argues that appellate counsel failed to file a supplemental brief in his direct appeal citing to Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009) (Montgomery I), which held that giving the then standard jury instruction for manslaughter by act constituted fundamental error, effectively denying him the opportunity to be placed in the Montgomery pipeline. Though this Court previously denied Marshall's first petition raising this same ground, [1] for the following reasons, we grant the instant, successive petition based on the manifest injustice doctrine and remand for a new trial.

         1. Underlying Facts and Procedural Background

         The State charged Marshall by information with second degree murder for strangling the victim, Marie Sanders, to death on April 2, 2004. The case proceeded to trial on November 14, 2006. Eyewitness testimony at trial established that Marshall accosted the victim in her bed while she was sleeping. When the victim fell backwards off the bed during the ensuing struggle, Marshall straddled the victim - who by then was lying face down on the floor - and proceeded to choke her for at least four minutes. During this time, Marshall resisted attempts by the victim and two bystanders who tried to stop him. Marshall's attack continued despite one of the bystanders actually hitting Marshall with a kitchen pan. Marshall even continued to choke the victim after the police arrived at the scene with guns drawn. Paramedics attempted to revive the victim, but she died at the scene.

         At the close of all the evidence, after instructing the jury of the elements of second degree murder, the trial court instructed the jury, without objection, as to the lesser included offenses of manslaughter by act and manslaughter by culpable negligence, giving the then standard jury instructions as to those crimes.[2] The jury found Marshall guilty of second degree murder as charged. The trial court adjudicated Marshall guilty of second degree murder and, on December 26, 2006, sentenced Marshall to forty-five years in prison.

         Marshall, through counsel, appealed his conviction. On direct appeal, Marshall did not challenge the validity of the manslaughter by act jury instruction that had been given at trial. This Court affirmed his conviction with a written opinion issued on July 22, 2009. See Marshall v. State, 15 So.3d 811 (Fla. 3d DCA 2009). This Court's mandate issued on August 7, 2009. Marshall thereafter filed a pro se petition for belated discretionary review in the Florida Supreme Court, but voluntarily dismissed that petition on November 5, 2009. See Marshall v. State, 22 So.3d 538 (Fla. 2009) (table).

         2. The Postconviction Proceedings

         a. Montgomery I and Montgomery II

         On February 12, 2009, while Marshall's direct appeal was still pending in this Court, the First District issued its opinion in Montgomery I. In Montgomery I, our sister court found that the trial court had fundamentally erred in giving the then standard jury instruction for manslaughter by act because the instruction erroneously suggested that intent to kill was an element of that crime. 70 So.3d at 608. The Montgomery I court ordered a new trial for Montgomery, but certified the issue to the Florida Supreme Court as one of great pubic importance. Id. The Florida Supreme Court accepted jurisdiction of Montgomery I's certified question on May 7, 2009, again, while Marshall's direct appeal was still pending in this Court; yet, Marshall's appointed appellate counsel did not notify this Court of either the Montgomery I decision, or that the Florida Supreme Court had accepted jurisdiction to answer the question certified in Montgomery I.

         On April 8, 2010, the Florida Supreme Court approved the First District's decision in Montgomery I "to the extent that it held that manslaughter by act does not require proof that the defendant intended to kill the victim and concluding that in this case, the use of the standard jury instruction on manslaughter constituted fundamental error." State v. Montgomery, 39 So.3d 252, 260 (Fla. 2010) ("Montgomery II").

         b. Marshall's Rule 3.850 motion

         While the record is unclear as to exactly when, Marshall notified his appellate counsel of the Montgomery proceedings. On May 21, 2010, Marshall's appellate counsel sent Marshall a letter that acknowledged counsel's oversight. Attached to counsel's letter was a draft Florida Rule of Criminal Procedure Rule 3.850 postconviction motion alleging ineffective assistance of both trial counsel and appellate counsel, for Marshall to file pro se. That postconviction motion alleged that (i) Marshall's trial counsel had been ineffective for failing to object the manslaughter by act jury instruction at trial, and (ii) Marshall's appellate counsel had been ineffective for failing to file a supplemental brief in Marshall's direct appeal, missing the opportunity to place Marshall in the Montgomery pipeline. Counsel's letter to Marshall also contained an affidavit signed by counsel in which counsel averred, in relevant part, "I was ineffective as appellate counsel by failing to recognize the error committed by the trial court and thus deprived the defendant/petitioner of effective assistance of counsel on appeal, in violation of his Sixth Amendment rights, and I therefore join in the defendant/petitioner's motion for the relief requested therein."

         In June 2010, Marshall filed in the lower court his pro se rule 3.850 motion and accompanying affidavit, both of which had been prepared by his appellate counsel. The trial court denied Marshall's pro se rule 3.850 motion, [3] and this Court, without elaboration, affirmed the trial court's denial of Marshall's rule 3.850 motion. Marshall v. State, 56 So.3d 11 (Fla. 3d DCA 2011) (table).

         c. Marshall's Rule 9.141(d) Petitions Alleging Ineffective Assistance of Appellate ...


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