       Third District Court of Appeal
                                State of Florida

                         Opinion filed November 15, 2017.
          Not final until disposition of timely filed motion for rehearing.
                                ________________

                                 No. 3D15-735
                          Lower Tribunal No. 06-13152
                              ________________

                                 Willie Pinson,
                                     Appellant,

                                         vs.

                             The State of Florida,
                                     Appellee.


     An Appeal from the Circuit Court for Miami-Dade County, Yvonne
Colodny, Judge.

      Law Offices of Daniel J. Tibbitt, and Daniel Tibbitt, for appellant.

      Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant
Attorney General, for appellee.


Before LOGUE, SCALES, and LINDSEY, JJ.

      LOGUE, J.

      This is an appeal from the denial of a Rule 3.850 motion for postconviction

relief. The defendant argues that his trial counsel was ineffective for failing to
object to jury instructions that allegedly contravened State v. Montgomery, 39 So.

3d 252 (Fla. 2010). We affirm.

      The defendant was convicted of the second-degree murder of Walter King

and the attempted second-degree murder of Cedric Bivens. According to multiple

witnesses, including one victim who survived, the defendant shot King and Bivens

when they were ten to fifteen feet away from him. The defendant, who also

testified at trial, claimed he shot out of fear, without any intent to hit the victims.

      After the defendant was found guilty, he appealed and this Court affirmed

per curiam in Pinson v. State, 75 So. 3d 739 (Fla. 3d DCA 2011). In December

2013, the defendant filed a Rule 3.850 motion for postconviction relief. Following

an evidentiary hearing, the postconviction court denied the motion and this appeal

followed. Of the multiple points on appeal, we address one point and affirm all

others without further discussion.

      The defendant argues that his trial counsel was ineffective because he failed

to object to the manslaughter by act and the attempted manslaughter by act jury

instructions. By asserting that the jury instructions lacked a fundamental element

of the charged offense, namely that the defendant’s intentional act must have

caused death, the defendant in reality is challenging the substance of the

instructions. He is procedurally barred from doing so at this time.




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      The time to raise the adequacy of the instructions was on direct appeal.

Having failed to raise the issue then, the defendant cannot raise the issue now

under the guise of a claim of ineffective assistance of counsel. As our Supreme

Court has held, “[t]he substantive challenges to these jury instructions are

procedurally barred because [the defendant] could have raised these claims on

direct appeal.” Thompson v. State, 759 So. 2d 650, 665 (Fla. 2000); see Israel v.

State, 985 So. 2d 510, 520 (Fla. 2008) (“Claims regarding the adequacy or

constitutionality of jury instructions should be raised on direct appeal. . . .

Moreover, this Court will not consider such procedurally barred claims under the

guise of ineffective assistance of counsel.”); Rodriguez v. State, 919 So. 2d 1252,

1280 (Fla. 2005) (“Claims regarding the adequacy or constitutionality of jury

instructions should be raised on direct appeal.”).

      Even if the defendant overcomes this procedural hurdle, his claim still fails.

The defendant argues that “[b]oth instructions omitted a fundamental element of

the offense of voluntary manslaughter, to wit, that the defendant’s intentional act

must have caused the death.” (emphasis in original). But the flaw, if any, in the

instructions that he challenges actually benefited the defendant. By making it

easier to convict for the lesser charges, the instructions made it more likely that the

defendant would be found guilty of the lesser offenses of manslaughter and

attempted manslaughter and therefore less likely that the defendant would be found



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guilty of the higher offenses of second-degree murder and attempted second-

degree murder.

      In contrast, the defect at issue in Montgomery made it harder to convict of

the lesser offense because “a reasonable jury would believe that in order to convict

[the defendant] of manslaughter by act, it had to find that he intended to kill the

victim.” Montgomery, 39 So. 3d at 257. This increased the chance the jury would

reject manslaughter and instead convict for murder. It is the opposite of what

occurred here.

      Defense counsel’s performance cannot be found to be of “such magnitude as

to constitute a serious error or substantial deficiency falling measurably outside the

range of professionally acceptable performance,” Groover v. Singletary, 656 So.

2d 424, 425 (Fla.1995) (quotation omitted), on the basis that he failed to object to

jury instructions that actually benefited the defendant.

      Affirmed.




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