188 So. 3d 859
Fla. Dist. Ct. App.2015Background
- Defendant Joseph Edward Facin was convicted of attempted second-degree murder, possession of a firearm by a convicted felon, and shooting or throwing deadly missiles.
- On direct appeal Facin argued (1) the jury instruction on attempted voluntary manslaughter (a lesser-included to attempted first-degree murder) was fundamentally erroneous because it required intent to kill; (2) trial court erred denying amended motion for new trial based on ineffective assistance; (3) counsel was ineffective for failing to object to the flawed manslaughter instruction; and (4) trial court abused discretion by denying a continuance for conflict counsel to obtain witness testimony.
- The panel initially issued a per curiam affirmance, then granted Facin’s motion for a written opinion addressing the manslaughter instruction issue.
- The court agreed the standard instruction on attempted voluntary manslaughter was fundamentally flawed under Williams/Montgomery because manslaughter does not require intent to kill.
- The court held that Facin’s trial counsel waived the instructional error by affirmatively approving the instruction at the charging conference, failing to object when Montgomery was discussed, and declining additional clarification when the jury asked.
- The court declined to reach ineffective-assistance-on-the-record claims, explaining such claims are generally improper on direct appeal and that a tactical explanation for counsel’s conduct was conceivable; Facin may raise them in a Rule 3.850 proceeding.
Issues
| Issue | Facin's Argument | State's Argument | Held |
|---|---|---|---|
| 1. Whether the jury instruction on attempted voluntary manslaughter was fundamental error | Instruction improperly required intent to kill for attempted manslaughter | Instruction was correct/applicable; no reversible error because of counsel conduct | Instruction was fundamentally flawed under Williams/Montgomery, but error was waived by defense counsel’s affirmative approval |
| 2. Whether trial court erred denying amended motion for new trial based on ineffective assistance | Counsel was ineffective such that a new trial was required | No reversible error; issues not preserved for direct appeal | Affirmed without discussion (claim not addressed on the merits) |
| 3. Whether counsel was ineffective for failing to object to the flawed instruction | Failure to object constituted ineffective assistance apparent on record | Tactical waiver/agreement to instruction; not obvious ineffective assistance on the record | Not resolved on direct appeal; court declines to find ineffectiveness and notes claim may be raised in Rule 3.850 |
| 4. Whether trial court erred by denying conflict counsel a continuance to obtain witness testimony | Denial prevented obtaining exculpatory/testimonial evidence | No abuse of discretion | Affirmed without discussion |
Key Cases Cited
- Williams v. State, 123 So.3d 23 (Fla. 2013) (held standard attempted-manslaughter-by-act instruction is fundamentally flawed where defendant convicted of offense one step removed)
- State v. Montgomery, 39 So.3d 252 (Fla. 2010) (manslaughter statute does not require intent to kill; standard instruction was inaccurate)
- Joyner v. State, 41 So.3d 306 (Fla. 1st DCA 2010) (defense counsel’s affirmative agreement to an instruction waives claimed fundamental error)
- Bruno v. State, 807 So.2d 55 (Fla. 2001) (ineffective-assistance claims generally not cognizable on direct appeal)
- Ellerbee v. State, 87 So.3d 730 (Fla. 2012) (rare exception permitting direct-appeal review of ineffective assistance where record plainly demonstrates ineffectiveness)