IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
JONATHAN PAGE,
Petitioner,
v. Case No. 5D16-1860
STATE OF FLORIDA,
Respondent.
________________________________/
Opinion filed September 30, 2016
Petition for Writ of Habeas Corpus,
A Case of Original Jurisdiction.
Jonathan Page, Milton, pro se.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Douglas T. Squire,
Assistant Attorney General, Daytona
Beach, for Respondent.
PER CURIAM.
In March 2010, following a jury trial, Jonathan Page was convicted of second-
degree murder, attempted first-degree murder, and attempted robbery. Because one of
the lesser included offenses for second-degree murder was manslaughter, the trial court
instructed the jury on the elements necessary for the State to prove manslaughter,
utilizing, without objection, the then standard manslaughter by intentional act jury
instruction.
One month after Page’s trial, the Florida Supreme Court held that the same
standard manslaughter by intentional act jury instruction that was used in Page’s trial was
incorrect because, contrary to the language in the instruction, “the crime of manslaughter
by act does not require that the State prove that the defendant intended to kill the victim.”
State v. Montgomery, 39 So. 3d 252, 255 (Fla. 2010). The court further concluded that
giving this erroneous jury instruction would constitute fundamental error in cases where
the defendant was convicted of second-degree murder, an offense only one step removed
from manslaughter. Id. at 259.
Much like the defendant in Montgomery, Page was also convicted of second-
degree murder. However, on direct appeal, Page’s counsel did not argue that Page was
entitled to relief pursuant to Montgomery. Instead, counsel filed what is commonly
referred to as an Anders brief,1 concluding that there were no arguable grounds for
reversal apparent in the record. In defense of Page’s appellate counsel, we note that
several of our sister courts had ruled that where, as here, the trial court had also given
the manslaughter by culpable negligence jury instruction, the fundamental error described
in Montgomery was alleviated. See Salonko v. State, 42 So. 3d 801 (Fla. 1st DCA 2010);
Singh v. State, 36 So. 3d 848 (Fla. 4th DCA 2010); Nieves v. State, 22 So. 3d 691 (Fla.
2d DCA 2009).2 However, while Page’s direct appeal was pending, the Second District
certified a question of great public importance to the Florida Supreme Court as to whether
1 Anders v. California, 386 U.S. 738 (1967).
2In Paul v. State, 63 So. 3d 828 (Fla. 5th DCA 2011), we aligned ourselves with
these courts. The Florida Supreme Court later quashed this opinion in Paul v. State, 137
So. 3d 1021 (Fla. 2014), and we thereafter withdrew our opinion. Paul v. State, 137 So.
3d 465 (Fla. 5th DCA 2014).
2
Page’s most recent petition seeking habeas corpus relief is presently before us.
Page contends that it is manifestly unjust that he is now serving life in prison for second-
degree murder when an admittedly fundamental error occurred at his trial from the use of
the flawed manslaughter by act jury instruction and the error has not previously been
remediated by this court, despite two earlier opportunities to do so. Page argues that this
error has been compounded by our court affirming his direct appeal, without opinion, and
failing to mention his Montgomery claim when we dismissed his subsequent ineffective
assistance of appellate counsel proceeding, thereby thwarting his ability to seek further
review with the Florida Supreme Court. See Jenkins v. State, 385 So. 2d 1356, 1359
(Fla. 1980) (holding that the Florida Supreme Court lacks jurisdiction to review per curiam
decisions of district courts of appeal issued without opinion).
“[A]ppellate courts have ‘the power to reconsider and correct erroneous rulings
[made in earlier appeals] in exceptional circumstances and where reliance on the
previous decision would result in manifest injustice.’” State v. Akins, 69 So. 3d 261, 268
(Fla. 2011) (second alteration in original) (quoting Muehleman v. State, 3 So. 3d 1149,
1165 (Fla. 2009) (additional citations omitted)). On two prior occasions, we have granted
habeas corpus relief to petitioners convicted of second-degree murder based upon the
application of the manifest injustice doctrine arising from the use of the same
fundamentally flawed manslaughter by act jury instruction at trial, despite those
petitioners’ earlier unsuccessful appeals. See Paul v. State, 183 So. 3d 1154 (Fla. 5th
DCA 2015); Coleman v. State, 128 So. 3d 193 (Fla. 5th DCA 2013). Consistent with
these cases, we find that habeas corpus relief is appropriate here.
4
LAMBERT, J., concurring and concurring specially. 5D16-1860
I concur with the majority opinion granting Page habeas corpus relief because it is
consistent with our opinions in Paul v. State, 183 So. 3d 1154 (Fla. 5th DCA 2015), and
Coleman v. State, 128 So. 3d 193 (Fla. 5th DCA 2013). However, as explained in my
concurring opinion in Paul, but for the Florida Supreme Court’s opinions in Montgomery
and Haygood, I would affirm Page’s conviction and sentence for second-degree murder
because, in my view, although the use of the manslaughter by intentional act instruction
was error, it was not fundamental error.
6
Accordingly, we reverse Page’s conviction and sentence for second-degree
murder and remand for a new trial on this count. Page’s separate convictions and
sentences for attempted first-degree murder and attempted robbery are not affected by
this opinion.3
PETITION FOR WRIT OF HABEAS CORPUS GRANTED.
COHEN and WALLIS, JJ., concur.
LAMBERT, J., concurs and concurs specially, with opinion.
3 Page is currently serving a thirty-year prison sentence for the attempted first-
degree murder. Page was also sentenced to a concurrent five-year prison sentence for
the attempted robbery, which he has now completed.
5
LAMBERT, J., concurring and concurring specially. 5D16-1860
I concur with the majority opinion granting Page habeas corpus relief because it is
consistent with our opinions in Paul v. State, 183 So. 3d 1154 (Fla. 5th DCA 2015), and
Coleman v. State, 128 So. 3d 193 (Fla. 5th DCA 2013). However, as explained in my
concurring opinion in Paul, but for the Florida Supreme Court’s opinions in Montgomery
and Haygood, I would affirm Page’s conviction and sentence for second-degree murder
because, in my view, although the use of the manslaughter by intentional act instruction
was error, it was not fundamental error.
6