       Third District Court of Appeal
                               State of Florida

                          Opinion filed March 22, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D15-392
                           Consolidated: 3D13-2443
                         Lower Tribunal No. 02-16964
                             ________________


                               Parrish Kerney,
                              Petitioner/Appellant,

                                        vs.

                            The State of Florida,
                              Respondent/Appellee.

     A Case of Original Jurisdiction-Habeas Corpus-Case No. 3D15-392.

     An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) –Case
No. 3D13-2443, from the Circuit Court for Miami-Dade County, Dennis J.
Murphy, Judge.

      Carlos J. Martinez, Public Defender, and John Eddy Morrison, Assistant
Public Defender; Benjamin S. Waxman, for petitioner/appellant.

     Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney
General, for respondent/appellee.


Before WELLS, SALTER and LOGUE, JJ.*
      WELLS, Judge.

      In these cases, which we consolidate, we address Parrish Kerney’s appeal

from an order denying his Florida Rule of Criminal Procedure 3.850 post-

conviction motion and his Florida Rule of Appellate Procedure 9.141(d)(5) petition

for habeas corpus relief. For the following reasons, we affirm denial of his Rule

3.850 motion but grant his petition for habeas corpus relief and remand this matter

to the court below for a new trial.

      In July of 2002, Kerney was indicted for the first degree murder and strong

arm robbery of Claudette Andrews. Ms. Andrews was found in her ransacked

home covered with bruises, strangled to death, with a television set on her head.

Kerney admitted that he had gone to return a plunger that he had borrowed from

Ms. Andrews, who was his neighbor, and while there, he had been caught stealing

money from her purse. According to Kerney, during an ensuing struggle, Ms.

Andrews ended up on the floor where he “started squeezing” her neck until she had

stopped breathing. While Kerney denied that he intended to kill Ms. Andrews, he

did admit that after she was dead he masturbated, ejaculating on the floor, and then

left with her money.




*Judges Salter and Logue did not participate in oral argument in Case Number
3D13-2443.

                                         2
    At the close of Kerney’s trial, the jury was instructed on manslaughter by act as

follows:

    1. Claudette Andrews is dead;

    2. Parrish Kerney intentionally caused the death of Claudette Andrews;
       or the death of Claudette Andrews was caused by the culpable
       negligence of Parrish Kerney.

       However, the defendant cannot be guilty of manslaughter if the killing
       was either justifiable or excusable homicide as I have previously
       explained those terms.

       In order to convict of manslaughter by intentional act, it is not
       necessary for the State to prove that the defendant had a premeditated
       intent to cause death.
       Kerney was convicted of second degree murder, and, as pertinent here,

argued on appeal that pursuant to Montgomery v. State, 39 So. 3d 252 (Fla. 2010),

it was reversible error to instruct the jury that “in order to convict [Kerney] of

manslaughter by an intentional act, . . . the state [had to] prove [that Kerney] had

the intent to cause the death of the victim.”1 Kerney further argued that this error

1  As Montgomery further confirmed, the intent necessary for the crime of
manslaughter by act is not the intent to kill but the intent to act which resulted in a
death:

             We . . . hold that the crime of manslaughter by act does not
       require that the State prove that the defendant intended to kill the
       victim. We further hold that the intent which the State must prove for
             { "pageset": "Sfc5
       the               purpose of manslaughter by act is the intent to
       commit an act that was not justified or excusable, which caused the
       death of the victim.

Montgomery, 39 So. 3d at 259-260.

                                          3
was not cured, as a number of other district courts had held, by also giving an

instruction on manslaughter by culpable negligence:

      The trial judge in this case, unlike the judge in Montgomery, also
      instructed the jury they could convict defendant of manslaughter if
      they found he was culpably negligent. Several district courts of
      appeal have concluded if the trial judge gives the jury the opportunity
      to convict defendant of manslaughter by culpable negligence, the
      improper jury instruction of manslaughter by act is not fundamental
      error. See Nieves v. State, 22 So. 2d [sic] 691 (Fla. 2d DCA 2009)
      and Solandko[sic] v. State, __ So. 2d [sic] __, 2010 WL 480844 (Fla.
      1st DCA 2010).

             However, a review of the facts in this case establishes that the
      inclusion of the culpable negligence instruction did not alleviate the
      prejudice of the improper manslaughter by act instruction since, there
      was no construction of the evidence which even remotely suggested
      that the crime in this case was caused by the culpable negligence of
      defendant.
      This argument, as well as Kerney’s other arguments, were rejected by this

court in a per curiam opinion without citation. On February 18, 2011, the mandate

in that case issued. By that time, notices to invoke jurisdiction in the Florida

Supreme Court had already been filed in both Salonko (April 29, 2010) and Cubelo

v. State, 41 So. 3d 263 (Fla. 3d DCA 2010) (September 7, 2010), seeking review of

determinations from decisions determining that giving a culpable negligence

instruction along with the erroneous manslaughter by act instruction in effect cured

the manslaughter by act instruction error. See Cubelo, 41 So. 3d at 267-68 (“We

find, as the First District found in Salonko, that the instant case is factually

distinguishable from Montgomery as the Montgomery jury did not receive an


                                         4
instruction on culpable negligence as did the jury in the instant case. . . . Thus, we

conclude, as the First District concluded in Salonko, that because the jury was

instructed on both manslaughter by act and manslaughter by culpable negligence,

there was no fundamental error requiring a reversal of the defendant’s conviction

for second degree murder.”).

      While proceedings in the Florida Supreme Court in Salonko were stayed on

June 9, 2010, pending disposition of Montgomery, by the time the mandate issued

in Kerney’s appeal on February 18, 2011, a notice had been filed in the Florida

Supreme Court (February 9, 2011) seeking discretionary review of the Second

District Court of Appeal’s decision in Haygood v. State, 54 So. 3d 1035 (Fla. 2d

DCA 2011). There, as in Salonko and Cubelo, the District Court of Appeal had

held “that the erroneous [manslaughter by act] instruction was not fundamental

error . . . because the jury was also instructed on manslaughter by culpable

negligence.” Haygood v. State, 109 So. 3d 735, 738 (Fla. 2013). On May 5, 2011,

a little over two months after the mandate issued in Kerney’s case, the Florida

Supreme Court accepted jurisdiction in Haygood and simultaneously stayed further

proceedings in this court’s decision in Cubelo pending disposition of Haygood.

      Despite the fact that the Miami-Dade County Public Defender’s office was

seeking Supreme Court review in Cubelo of the same issue raised and rejected in

Kerney’s appeal, it filed no motion to recall the mandate and made no effort to



                                          5
secure a written opinion with citations to Salonko or otherwise so as to put Kerney

in the Haygood “pipeline.” On February 14, 2013, Haygood was decided, holding

that “that giving the manslaughter by culpable negligence instruction does not cure

the fundamental error in giving the erroneous manslaughter by act instruction

where the defendant is convicted of an offense not more than one step removed

from manslaughter and the evidence supports a finding of manslaughter by act, but

does not reasonably support a finding that the death occurred due to the culpable

negligence of the defendant.” Haygood, 109 So. 3d at 741. The decisions in

Salonko and Cubelo were quashed and remanded for reconsideration in light of

Haygood. See Salonko v. State, 137 So. 3d 1022 (Fla. 2014); Cubelo v. State, 137

So. 3d 1019 (Fla. 2014).

      A little over three months after the Supreme Court’s decision in Haygood,

Kerney filed the instant post-conviction motion claiming that Haygood is

retroactive in application and by virtue of the fact that he was in the Montgomery

pipeline, he should have been in the Haygood pipeline as well. The court below

denied the motion, determining that it was not timely as having been filed more

than two years after Kerney’s judgment and sentence had become final and

because Haygood is not retroactive in its application.       We agree with both

determinations and thus affirm the order denying his Rule 3.850 motion. See Fla.

R. Crim. P. 3.850(b) (providing that “[n]o other motion [other than a motion to



                                        6
vacate a sentence that exceeds the limits provided by law] shall be filed or

considered pursuant to this rule if filed more than 2 years after the judgment and

sentence become final”); De La Hoz v. Crews, 123 So. 3d 101, 104 (Fla. 3d DCA

2013) (stating that Haygood is not retroactively applicable).

      However, we reach a different result as to Kerney’s timely filed Rule 9.141

petition for habeas corpus alleging ineffective assistance of appellate counsel.   2



That sworn petition filed four years to the day on which Kerney’s judgment and

sentence became final on direct review claimed, among other things, that his

appellate attorney had misadvised Kerney as to his options after his conviction by

leading him to believe any further action on his part would be of no merit and by

listing the options available to Kerney without identifying the one option that

might have provided him relief—the right to request a written opinion citing case

law that would put him in the Haygood pipeline:

             Appellate counsel was under no obligation to file for
      discretionary review on Mr. Kerney’s behalf. But, having just
      correctly argued in the brief that Montgomery controlled the outcome
      of this case, it was outside of professional standards of competence
      and diligence to then inform Mr. Kerney that this Court had granted a

2 Florida Rule of Appellate Procedure 9.141(d)(5) states that “[a] petition alleging
ineffective assistance of appellate counsel on direct review shall not be filed more
than 2 years after the judgment and sentence become final on direct review unless
it alleges under oath with a specific factual basis that the petitioner was
affirmatively misled about the result of the appeal by counsel,” and that “[i]n no
case shall a petition alleging ineffective assistance of appellate counsel on direct
review be filed more than 4 years after the judgment and sentence become final on
direct review.”

                                         7
      (non-existent) motion to withdraw as his attorney as though his appeal
      had no merits and an Anders brief had been filed. It was also outside
      professional competence to affirmatively tell Mr. Kerney some of his
      options without telling him the one option he most needed to know
      about: keeping this conviction from becoming final pending Haygood
      by asking this Court to amend its per curiam affirmed decision by
      including a citation to Cubelo, Salonko or any of the other similar
      decisions and then filing for discretionary review in the Supreme
      Court of Florida.

(Citation omitted).3 The motion also argued that it was manifestly unjust under the

circumstances to deny Kerney relief.

      We need not determine which of these two grounds entitle Kerney to relief

as both are sufficient to warrant relief. As this court’s decision in De La Hoz

confirms, even had Kerney been advised of his right to request a written opinion

citing cases that would have allowed him to seek pipeline treatment, there was no

guarantee that such relief would have been granted and, under circumstances of

this case, it would be manifestly unjust to deny relief similarly accorded to many

others in Kerney’s position. 123 So. 3d at 104-105; see, e.g., Moore v. State, 165

So. 3d 712 (Fla. 3d DCA 2015); Dowe v. State, 162 So. 3d 35 (Fla. 4th DCA


3 A letter provided to Kerney by his appellate attorney advised him of four options:
(1) a motion for rehearing; (2) a motion to mitigate sentence; (3) a motion for post-
conviction relief; and (4) an action for federal post-conviction relief. No mention
was made of a request for a written opinion or a citation PCA to Salonko or Cubelo
which, as a number of other cases confirm, ultimately would have placed Kerney
in the Haygood pipeline. See, e.g., Smith v. State, 43 So. 3d 923 (Fla. 1st DCA
2010) quashed, 137 So. 3d 1022 (Fla. 2014); Barros-Dias v. State, 41 So. 3d 370
(Fla. 2d DCA 2010) quashed, 137 So. 3d 1019 (Fla. 2014); see also Moninger v.
State, 52 So. 3d 696 (Fla. 4th DCA 2010) quashed, 137 So. 3d 1021 (Fla. 2014).

                                         8
2014); Smith v. State, 145 So. 3d 972 (Fla. 1st DCA 2014); Barros-Dias v. State,

141 So. 3d 674 (Fla. 2d DCA 2014); Moninger v. State, 137 So. 3d 1129 (Fla. 4th

DCA 2014); see also McKay v. State, 988 So. 2d 51, 52 (Fla. 3d DCA 2008)

(vacating a judgment on an untimely ineffective assistance of appellate counsel

motion claiming manifest injustice); Adams v. State, 957 So. 2d 1183 (Fla. 3d

DCA 2006) (granting relief based on manifest injustice on an untimely post-

conviction motion).

      Kerney’s Rule 9.141 petition is, therefore, granted and Kerney’s judgment

and sentence for second degree murder is vacated with this matter being remanded

to the court below for a new trial.4




4We reverse for a new trial because we agree that in this case the evidence “does
not reasonably support a finding that [Ms. Williams’] death occurred due to the
culpable negligence of the defendant.” See Haygood, 109 So. 3d at 741.


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