Dill v. State
79 So. 3d 849
Fla. Dist. Ct. App.2012Background
- Dill, proceeding pro se, seeks habeas corpus relief alleging ineffective appellate assistance.
- Dill was convicted of attempted first-degree murder with a firearm or, in the alternative, attempted second-degree murder with a firearm and aggravated assault with a firearm.
- The habeas petition concerns only the attempted second-degree murder with a firearm count.
- Dill contends appellate counsel should have filed supplemental briefing after Montgomery to raise fundamental-error issues about the attempted voluntary manslaughter instruction.
- Montgomery v. State held the standard manslaughter-by-act instruction was fundamentally erroneous for adding an intent-to-kill element, and Lamb applied this logic to related instructions; this Court later extended the reasoning to attempted manslaughter by act (Burton referenced).
- The court grants the petition, determines appellate counsel’s failure to raise Montgomery was deficient, and remands for a new trial, while noting conflict with Williams.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was appellate counsel ineffective for not raising Montgomery? | Dill argues failure to raise Montgomery was deficient. | State contends no obligation to anticipate law changes. | Yes; omission defective, constituting ineffective assistance. |
| Does Montgomery apply to Dill's attempted voluntary manslaughter instruction? | Montgomery reasoning should render the instruction fundamental error. | Montgomery does not directly govern Dill's specific instruction at issue. | Yes; the instruction was fundamentally defective as applied. |
| Should habeas relief be granted and remand for new trial? | Relief warranted to cure ineffective assistance and misinstruction error. | Relief unnecessary without final resolution of surrounding authorities. | Granted; remand for a new trial. |
| Does granting relief create conflict with Williams and related authorities? | Conflict should be acknowledged and pursued to correct misalignment. | No conflict or it is outweighed by other authorities. | Conflict certified with Williams; remand granted. |
Key Cases Cited
- Montgomery v. State, 39 So.3d 252 (Fla. 2010) (fundamental error for standard manslaughter instruction)
- Lamb v. State, 18 So.3d 734 (Fla. 1st DCA 2009) (applied Montgomery reasoning to attempted voluntary manslaughter)
- Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010) (conflicts with Montgomery-based reasoning on attempted manslaughter instruction)
- Lopez v. State, 68 So.3d 332 (Fla. 5th DCA 2011) (ineffective assistance for failure to raise Montgomery)
- Hodges v. State, 64 So.3d 142 (Fla. 5th DCA 2011) (ineffective appellate counsel for not raising Montgomery)
- Burton v. State, So.3d (Fla. 5th DCA 2011) (extension of Montgomery reasoning to related issues)
- Granberry v. State, 919 So.2d 699 (Fla. 5th DCA 2006) (counsel's obligation to cite favorable rulings from other jurisdictions)
- Shabazz v. State, 955 So.2d 57 (Fla. 1st DCA 2007) (ineffective assistance for not citing favorable district decisions)
- Ortiz v. State, 905 So.2d 1016 (Fla. 2d DCA 2005) (failure to request supplemental briefing on favorable decisions)
- McCann v. Moore, 763 So.2d 556 (Fla. 4th DCA 2000) (belated appeal when counsel could have cited favorable law)
- Whatley v. State, 679 So.2d 1269 (Fla. 2d DCA 1996) (counsel ineffective for failing to cite favorable law when available)
- Freeman v. State, 761 So.2d 1055 (Fla. 2000) (Strickland standard in habeas context parallels trial counsel analysis)
- Pope v. Wainwright, 496 So.2d 798 (Fla. 1986) (establishes framework for evaluating serious omissions)
- Walton v. State, 847 So.2d 438 (Fla. 2003) (allows some anticipation of legal changes but not complete foreknowledge)
- Gervasoni v. State, 766 So.2d 478 (Fla. 5th DCA 2000) (commentary on raising favorable case law from other jurisdictions)
- Toby v. State, 29 So.3d 1138 (Fla. 1st DCA 2009) (pre-Montgomery decision on supplemental briefing)