Pierce v. State
121 So. 3d 1091
| Fla. Dist. Ct. App. | 2013Background
- Pierce was charged with attempted first-degree premeditated murder with a firearm and related offenses; the jury was instructed on several theories of attempted murder, including attempted manslaughter by act requiring an intent to kill.
- Pierce was actually convicted of attempted second-degree murder with a firearm, a crime one step removed from the necessarily lesser-included offense of attempted manslaughter.
- At trial in November 2009, the standard instruction for attempted manslaughter by act was given and Pierce did not object; subsequent law changes would later render that instruction fundamental error.
- Between the initial appeal (2010) and later developments, Florida decisions such as Montgomery and Lamb favored Pierce by condemning the standard manslaughter by act instruction for including an intent to kill, though those issues were not raised on Pierce’s appeal.
- After the pendency of Pierce’s appeal, Florida Supreme Court decisions and district court opinions clarified the error, and Burton v. State aligned with Lamb on fundamental error for the same instruction.
- The appellate court concluded that Pierce’s counsel’s failure to raise the instructional error deprived Pierce of a fair appellate process, vacated the conviction for attempted second-degree murder with a firearm, and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance for not raising instruction error | Pierce | Pierce | Relief granted; counsel deficient |
| Whether the error was fundamental | Montgomery/Lamb supported reversal | No timely issue raised | Fundamental error established |
| Appropriate remedy | Remand for new trial on the charge | Maintain conviction if possible | Conviction vacated and remanded for new trial |
Key Cases Cited
- Montgomery v. State, 89 So.3d 252 (Fla. 2010) (lesser-included status and instructional error considerations)
- Lamb v. State, 18 So.3d 734 (Fla. 1st DCA 2009) (fundamental error for incorrect manslaughter by act instruction)
- Lopez v. State, 68 So.3d 332 (Fla. 5th DCA 2011) (ineffective assistance for failing to argue favorable cross-district authority)
- Shahazz v. State, 955 So.2d 57 (Fla. 1st DCA 2007) (failing to raise favorable out-of-district authority ineffective)
- Ortiz v. State, 905 So.2d 1016 (Fla. 2d DCA 2005) (failure to request supplemental briefing on favorable decision)
- McCann v. Moore, 763 So.2d 556 (Fla. 4th DCA 2000) (ample time to cite favorable decisions but failure to do so)
- Ford v. Singletary, 689 So.2d 392 (Fla. 3d DCA 1997) (ineffective for failing to bring new supreme court decision to attention in pipeline cases)
- Whatley v. State, 679 So.2d 1269 (Fla. 2d DCA 1996) (failing to cite favorable binding case law from another district)
- Pena v. State, 901 So.2d 781 (Fla. 2005) (jury must be given fair opportunity to assess lesser offenses; instructional clarity matters)