James C. Marshall, Petitioner,
The State of Florida, Respondent.
final until disposition of timely filed motion for rehearing.
of Original Jurisdiction - Habeas Corpus. Lower Tribunal No.
J. Martinez, Public Defender, and Robert Kalter, Assistant
Public Defender, for petitioner.
Jo Bondi, Attorney General, and Marlon J. Weiss and Michael
W. Mervine, Assistant Attorneys General, for respondent.
LOGUE, SCALES and LINDSEY, JJ.
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,  for the following reasons, we grant the
instant, successive petition based on the manifest injustice
doctrine and remand for a new trial.
Underlying Facts and Procedural Background
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.
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. 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.
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).
The Postconviction Proceedings
Montgomery I and Montgomery II
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.
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").
Marshall's Rule 3.850 motion
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."
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,
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)
Marshall's Rule 9.141(d) Petitions Alleging Ineffective
Assistance of Appellate ...