DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

JEVON HANTHONY WIMBERLY,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

No. 4D12-2720

[September 3, 2014]

Petition alleging ineffective assistance of counsel to the Circuit Court 

for the Seventeenth Judicial Circuit, Broward County; John J. Murphy, 

III, Judge; L.T. Case No. 06-18716 CF10A.

Jevon Hanthony Wimberly, Crawfordville, pro se. 

Pamela Jo Bondi, Attorney General, Tallahassee, Melvin G. Mosier and 

Matthew Ocksrider, Assistant Attorneys General, West Palm Beach, for 

respondent.

ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

This case is on remand following the Florida Supreme Court’s January 

24, 2014 order in case number SC12-2330. The Supreme Court has 

quashed our order denying the petition in this case and remanded for 

reconsideration upon application of Williams v. State, 123 So. 3d 23 (Fla. 

2013).

We grant the petition and conclude that appellate counsel was 

ineffective in failing to argue fundamental error in the jury instruction that 

was given for the lesser offense of attempted voluntary manslaughter.1 

1 At the time of petitioner’s direct appeal from his attempted second-degree 

murder conviction, the First District had certified the question regarding the 

fundamental error in the standard voluntary manslaughter jury instruction. 

Montgomery v. State, 70 So. 3d 603, 608 (Fla. 1st DCA 2009). Petitioner’s counsel 
2

Pierce v. State, 121 So. 3d 1091, 1093 (Fla. 5th DCA 2013) (“Although 

appellate counsel is not necessarily required to anticipate changes in the 

law . . . numerous cases have held appellate counsel ineffective for failing 

to raise favorable cases decided by other jurisdictions during the pendency 

of an appeal that could result in reversal.”) (citation omitted); see also 

Pierre v. State, 39 Fla. L. Weekly D1369 (Fla. 4th DCA July 2, 2014); 

Skinner v. State, 137 So. 3d 1164, 1166 (Fla. 3d DCA 2014) (granting relief 

in similar situations).

Petitioner was convicted of attempted second-degree murder which was 

only one step removed from the erroneous instruction on the lesser offense 

of attempted voluntary manslaughter. We do not agree with the State’s 

argument that the issue of intent was not disputed. Although petitioner 

argued misidentification at trial, he did not concede the intent with which 

the shooting was committed. Petitioner was charged with attempted firstdegree murder but convicted of a lesser offense. Intent was a disputed 

issue at trial, and the erroneous instruction was pertinent to an issue that 

the jury had to consider in order to convict. Cf. Stewart v. State, 420 So.

2d 862, 863 (Fla. 1982) (finding no fundamental error in the failure to 

instruct on the specific intent element for robbery because defendant 

admitted taking the property).

Because a new appeal would be redundant, we vacate the conviction 

for attempted second degree murder and remand for a new trial.

WARNER, STEVENSON and LEVINE, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

could have raised the issue which had already been extended to the attempted 

voluntary manslaughter instruction by Lamb v. State, 18 So. 3d 734, 735 (Fla. 

1st DCA 2009). We did not issue our opinion certifying conflict with Lamb until 

after we affirmed the conviction in petitioner’s case. Williams v. State, 40 So. 3d 

72, 76 (Fla. 4th DCA 2010).