Opinion
No. 3D13–2501.
2015-06-17
Chance DAWKINS, Petitioner, v. The STATE of Florida, et al., Respondents.
Chance Dawkins, in proper person. Pamela Jo Bondi , Attorney General, and Douglas J. Glaid , Senior Assistant Attorney General, for respondents.
Chance Dawkins, in proper person.Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for respondents.
Before , EMAS, and FERNANDEZ, JJ.
ON MOTION FOR REHEARING OR CLARIFICATION
, J.
The State of Florida moves for rehearing or clarification of the May 28, 2014 opinion granting Chance Dawkins' petition for writ of habeas corpus and remanding for a new trial. We grant the State's motion for rehearing, withdraw the prior opinion and substitute the following in its place:
Chance Dawkins petitions for writ of habeas corpus alleging ineffective assistance of appellate counsel where counsel failed to move for rehearing based on Haygood v. State, 109 So.3d 735 (Fla.2013). Dawkins argues that his second degree murder conviction must be reversed because the manslaughter by act instruction read to the jury was the same instruction held to be fundamentally flawed under State v. Montgomery, 39 So.3d 252 (Fla.2010) and that pursuant to Haygood, the additional instruction on manslaughter by culpable negligence did not cure the error. We deny the petition.
The basis of Dawkins' habeas petition is appellate counsel's failure to move for rehearing within fifteen days of this Court's affirmance in Dawkins' direct appeal, based on Cubelo v. State, 41 So.3d 263, 267–68 (Fla. 3d DCA 2010) and Haygood v. State, 54 So.3d 1035, 1036–38 (Fla. 2d DCA 2011). Both of those cases were subsequently quashed and remanded for consideration in light of Haygood v. State, 109 So.3d 735 (Fla.2013). We agree with Dawkins that his 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).
In State v. Montgomery, 39 So.3d 252, 256 (Fla.2010), the Supreme Court of Florida held that “the crime of manslaughter by act does not require proof that the defendant intended to kill the victim.” The court further held that giving the then-standard jury instruction for manslaughter by act, which required such proof, constitutes fundamental error when a defendant is convicted of an offense one step removed from that offense. Id. at 256–59.
The Haygood Court held that
giving the manslaughter by culpable negligence instruction does not cure the fundamental error in giving the erroneous manslaughter by act instruction where the defendant is convicted of an offense not more than one step removed from manslaughter and the evidence supports a finding of manslaughter by act, but does not reasonably support a finding that the death occurred due to the culpable negligence of the defendant.