DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014
RAUL GIBSON,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
No. 4D13-1397
[November 26, 2014]
Petition for writ of habeas corpus to the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; Michael L. Gates, Judge;
L.T. Case No. 07-1163 CF10A.
Raul Gibson, Blountstown, pro se.
Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A.
Egber, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Raul Gibson petitions this court for a writ of habeas corpus alleging a
manifest injustice in the denial, without citation, of his petition alleging
ineffective assistance of appellate counsel. The earlier of the two
petitions argued that counsel was deficient in not challenging a
Montgomery1 jury instruction on direct appeal of his attempted second
degree murder conviction. Although our decision in Williams v. State, 40
So. 3d 72 (Fla. 4th DCA 2010), required denial of the petition, if this
court had provided a citation, Gibson could have obtained relief from the
Florida Supreme Court. We therefore grant the petition. See Coleman v.
State, 128 So. 3d 193, 194 (Fla. 5th DCA 2013) (granting a successive
1 See Montgomery v. State, 70 So. 3d 603 (Fla. 1st DCA 2009) (holding that the
standard jury instructions for the lesser offense of manslaughter by act
improperly imposed an intent to kill element and was fundamentally erroneous
where defendant was convicted of an offense only one step removed), approved,
39 So. 3d 252 (Fla. 2010).
ineffective appellate counsel petition where a prior petition arguing a
Montgomery claim was denied without explanation).
Gibson was charged with attempted first degree murder, shooting at
or into an occupied vehicle, and retaliating against a witness, victim, or
informant. The jury instructions on the lesser offense of attempted
voluntary manslaughter required an intent to kill, the same defect
identified in Montgomery. He was found guilty of attempted second
degree murder which was only one step removed from the erroneous
attempted manslaughter instruction.
Gibson’s earlier petition claimed that appellate counsel was ineffective
in failing to file a supplemental brief in the direct appeal raising the First
District’s decision in Montgomery. At the time, this court had held that
the fundamental error identified in Montgomery did not extend to the
attempted voluntary manslaughter instruction. Williams, 40 So. 3d at
72. The Florida Supreme Court ultimately quashed our decision.
Williams v. State, 123 So. 3d 23, 25 (Fla. 2013).
Had this court provided a citation to Williams in our denial of Gibson’s
first petition, Gibson could have obtained relief from the Florida Supreme
Court. See, e.g., Wimberly v. State, 39 Fla. L. Weekly D1884 (Fla. 4th
DCA Sept. 3, 2014) (granting relief on remand from the Florida Supreme
Court where this court denied the ineffective assistance of appellate
counsel petition with citation to our decision in Williams); Walden v.
State, 39 Fla. L. Weekly D2069 (Fla. 4th DCA Oct. 1, 2014) (same).2
Because it would result in a manifest injustice to deny Gibson the
same relief, we grant the petition and remand for a new trial.
Petition granted.
GROSS, TAYLOR and CIKLIN, JJ., concur.
2 We have granted a new trial in a number of direct appeal cases that were
initially affirmed based on our decision in Williams. Rodriguez v. State, 139 So.
3d 489 (Fla. 4th DCA 2014); Fenster v. State, 141 So. 3d 232 (Fla. 4th DCA
2014); Lopez v. State, 138 So. 3d 488 (Fla. 4th DCA 2014); Davis v. State, 138
So. 3d 489 (Fla. 4th DCA 2014); Sessions v. State, 137 So. 3d 1167 (Fla. 4th
DCA 2014); Coriolan v. State, 137 So. 3d 1080 (Fla. 4th DCA 2014);
Cunningham v. State, 39 Fla. L. Weekly D451 (Fla. 4th DCA Feb. 26, 2014); Cox
v. State, 132 So. 3d 956 (Fla. 4th DCA 2014); Morgan v. State, 132 So. 3d 930
(Fla. 4th DCA 2014).
2
* * *
Not final until disposition of timely filed motion for rehearing.
3