Opinion
No. 3D13-2501 Lower Tribunal No. 07-26997
05-28-2014
Chance Dawkins, Petitioner, v. The State of Florida, Respondent.
Chance Dawkins, in proper person. Pamela Jo Bondi, Attorney General, for respondent.
Not final until disposition of timely filed motion for rehearing.
A case of original jurisdiction—Habeas Corpus.
Chance Dawkins, in proper person.
Pamela Jo Bondi, Attorney General, for respondent. Before SUAREZ, EMAS, and FERNANDEZ, JJ.
SUAREZ, J.
Chance Dawkins petitions for writ of habeas corpus. We grant the petition, vacate the petitioner's conviction and sentence for second-degree murder, and remand for a new trial.
Dawkins was convicted of second-degree murder with a firearm, one step removed from the lesser included offense of manslaughter by act. The manslaughter by act instruction read to the jury was the pre-Montgomery instruction that was determined to be per se fundamental error by the Florida Supreme Court at the time of Dawkins' trial. See State v. Montgomery, 39 So. 3d 252 (Fla. 2010). The trial court also instructed the jury on manslaughter by culpable negligence. The facts surrounding the offense, however, indicate that Dawkins did not rely on a culpable negligence defense and that there would have been no reason for the jury to rely on a culpable negligence instruction.
At the time of Dawkins' trial, our opinion in Cubelo v. State, 41 So. 3d 263 (Fla. 3d DCA 2010), held that giving the culpable negligence instruction alongside the defective manslaughter by act instruction ameliorated the effect of the error, and did not require reversal. Contemporaneously with Dawkins' trial, however, the Florida Supreme Court had granted review of Haygood v. State, 54 So. 3d 1035 (Fla. 2d DCA 2011), rev. granted, 61 So. 3d 410 (Fla. 2011). In Haygood, as in Cubelo, the appellate court found no fundamental error in giving the erroneous manslaughter by act instruction because the jury was also instructed on manslaughter by culpable negligence.
On appeal from his conviction for second-degree murder, Dawkins' counsel argued Montgomery required reversal because the manslaughter by act instruction was per se reversible error. Appellate counsel acknowledged this Court's holding in Cubelo, but argued that case directly contradicted the holding in Montgomery. On February 13, 2013, this Court affirmed Dawkins' conviction, with citation to Cubelo and Haygood, noting in the opinion's citation that Haygood was on review in the Florida Supreme Court. The very next day, on February 14, 2013, the Florida Supreme Court issued its decision in Haygood, effectively overruling Cubelo. Haygood v. State, 109 So. 3d 735 (Fla. 2013). Haygood holds the jury instruction on manslaughter by act, which imposes an additional element that the defendant intended to kill the victim, is fundamental error, and that error is not cured by also giving an instruction on manslaughter by culpable negligence. Id.; see also De La Hoz v. Crews, 123 So. 3d 101 (Fla. 3d DCA), review dismissed, 132 So. 3d 223 (Fla. 2013); Hill v. State, 124 So. 3d 296 (Fla. 2d DCA 2013).
Curiously, appellate counsel states in his brief that this Court's per curiam affirmance was without citation to authority, but this is not so. See Dawkins v. State, 106 So. 3d 990 (Fla. 3d DCA 2013).
On May 20, 2013, the Florida Supreme Court directed the State to show cause why Cubelo should not be summarily quashed and remanded to the Third District Court of Appeal for reconsideration in light of Haygood. On April 16, 2014, the Third District Court of Appeal, on remand from the Florida Supreme Court, reversed and remanded Cubelo's conviction because Cubelo's jury was provided with the same fundamentally erroneous manslaughter by act instruction the Florida Supreme Court addressed in Montgomery and Haygood. Cubelo v. State, 39 Fla. L. Weekly D784 (Fla. 3d DCA April 16, 2014).
The basis of Dawkins' habeas petition is appellate counsel's failure to move for rehearing within fifteen days of this Court's affirmance. See Fla. R. App. P. 9.330(a). Dawkins's appeal was not final, and was still pending, prior to issuance of the mandate. See, e.g., Jones v. State, 602 So. 2d 606, 607-08 (Fla. 1st DCA 1992) (noting a judgment and sentence become final when appellate proceedings have concluded, i.e., upon issuance of the mandate). Barring appellate counsel's failure to move for rehearing, Dawkins' appeal was in the Haygood "pipeline" during the fifteen-day rehearing window. See Mitchell v. Moore, 786 So. 2d 521, 530 (Fla. 2001) (recognizing that the "pipeline" theory allows a defendant to seek application of a new rule of law if the defendant's case is pending on direct review or not yet final at the time the new rule of law was announced).
Dawkins filed a motion for rehearing, but a few days after the mandate had issued, and the panel denied rehearing.
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Appellate counsel raised the fundamental Montgomery error on direct appeal and requested that the panel certify conflict with Montgomery; it did not. Counsel further argued that Cubelo affirmatively contradicted the holding in Montgomery. Although this Court correctly relied on current Florida law when affirming Dawkins' conviction, it also indicated by citation to Haygood, then pending on review in the Florida Supreme Court, that the law might be in transition. See, e.g., Persaud v. State, 838 So. 2d 529 (Fla. 2003) (explaining that there can be no actual conflict discernible in an opinion containing only a citation to other case law unless one of the cases cited as controlling authority is pending before this Court). Haygood was ultimately reversed by the Florida Supreme Court on the very issue presented in Dawkins' appeal, prior to Dawkins' appeal becoming final.
Accordingly, we grant the petition for habeas and remand for a new trial. See also Ivaldi v. State, 88 So. 3d 334 (Fla. 3d DCA 2012).