Kerney v. State
217 So. 3d 138
| Fla. Dist. Ct. App. | 2017Background
- In 2002 Kerney was convicted of second-degree murder for the strangulation death of his neighbor, Claudette Andrews; the jury received both manslaughter-by-act and manslaughter-by-culpable-negligence instructions.
- Kerney’s trial counsel and appellate counsel argued Montgomery v. State (that manslaughter-by-act does not require intent to kill), but the appellate court affirmed per curiam without opinion.
- After Kerney’s direct appeal mandate issued, Florida district courts and the Florida Supreme Court addressed whether giving a culpable-negligence manslaughter instruction cures an erroneous manslaughter-by-act instruction (cases including Salonko, Cubelo, and Haygood).
- The Florida Supreme Court in Haygood held that a culpable-negligence instruction does not cure the error when the evidence supports manslaughter-by-act but not culpable negligence. Haygood was decided after Kerney’s mandate issued.
- Kerney filed a Rule 3.850 postconviction motion claiming Haygood’s rule should apply retroactively; the trial court denied it as untimely and nonretroactive.
- Kerney timely filed a Rule 9.141(d)(5) habeas petition alleging ineffective assistance of appellate counsel for failing to seek a written opinion or cite controlling district decisions (which would have put him into the Haygood “pipeline”); the court granted relief on that petition and ordered a new trial.
Issues
| Issue | Kerney's Argument | State's Argument | Held |
|---|---|---|---|
| 1) Timeliness/retroactivity of Haygood in a 3.850 motion | Haygood should be applied; he was in the Montgomery/Haygood pipeline | 3.850 motion filed >2 years after finality and Haygood is not retroactive | Denied — 3.850 untimely and Haygood not retroactive |
| 2) Whether manslaughter-by-act instruction error is cured by culpable-negligence instruction | Error not cured if evidence supports manslaughter-by-act but not culpable negligence | Culpable-negligence instruction cures the manslaughter-by-act error | Court follows Haygood: where evidence does not support culpable negligence, error is not cured (basis for relief on habeas) |
| 3) Ineffective assistance of appellate counsel for failing to seek written opinion/citation PCA | Appellate counsel misadvised and failed to request a written opinion or PCA citation that would have put Kerney in Haygood pipeline | Appellate counsel had no obligation to seek discretionary review; no prejudice shown | Held for Kerney on habeas: counsel’s omission and advice warrant relief (manifest injustice and misadvice rules applied) |
| 4) Remedy | New trial requested | Affirmation of conviction preferred by State | Kerney’s conviction and sentence vacated; remanded for a new trial |
Key Cases Cited
- Montgomery v. State, 39 So. 3d 252 (Fla. 2010) (clarifies intent element for manslaughter by act)
- Haygood v. State, 109 So. 3d 735 (Fla. 2013) (holding culpable-negligence instruction does not cure manslaughter-by-act error when evidence supports act but not culpable negligence)
- De La Hoz v. Crews, 123 So. 3d 101 (Fla. 3d DCA 2013) (addresses Haygood’s nonretroactivity and pipeline issues)
- Salonko v. State, 137 So. 3d 1022 (Fla. 2014) (quashed by Haygood; earlier held culpable-negligence instruction could cure error)
- Cubelo v. State, 137 So. 3d 1019 (Fla. 2014) (quashed by Haygood; similar holding to Salonko)
- McKay v. State, 988 So. 2d 51 (Fla. 3d DCA 2008) (recognizes relief where failure to bring timely ineffective-assistance claim constitutes manifest injustice)