          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.




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