        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT
                             January Term 2014

                          WILSON PIERRE, JR.,
                               Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D14-638

                               [July 2, 2014]

   Petition for writ of habeas corpus to the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; John Kastrenakes, Judge; L.T. Case
No. 502007CF005269AXX.

   Louis G. Carres, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Surber,
Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

    Wilson Pierre, Jr., alleges that his appellate counsel was ineffective for
failing to argue on appeal that the manslaughter jury instruction given to
the jury constituted fundamental error pursuant to State v. Montgomery,
39 So. 3d 252, 259 (Fla. 2010). He also faults appellate counsel for failing
to notify the court about favorable case law from other jurisdictions. We
agree and grant the petition.

   Pierre was charged with first-degree murder. The jury was instructed
on the lesser included offenses of second-degree murder and
manslaughter by intentional act. With respect to manslaughter as a lesser
included offense, the court instructed the jury that the State had to prove
that Pierre “intentionally caused” the victim’s death. Later in the
instruction, the court also stated that “it [was] not necessary for the State
to prove that the defendant had a premeditated intent to cause death, only
an intent to commit an act which caused death.” This second provision
was consistent with a 2008 amendment to the instruction for
manslaughter by intentional act. In re Standard Jury Instructions in
Criminal Cases-Report No. 2007–10, 997 So. 2d 403 (Fla. 2008). The jury
found Pierre guilty of second-degree murder as a lesser included offense
and the judgment and sentence were affirmed on appeal. See Pierre v.
State, 90 So. 3d 892 (Fla. 4th DCA 2012).

    Pierre argues that this instruction violated Montgomery, which held
that an instruction for manslaughter by act requiring proof of intent to kill
was fundamentally erroneous. 39 So. 3d at 259. He faults counsel for
failing to raise Montgomery on appeal and for failing to notify the court
about Riesel v. State, 48 So. 3d 885 (Fla. 1st DCA 2010), in which the First
District held that an instruction identical to the one in the instant case
constituted fundamental error pursuant to Montgomery. Pierre also notes
that this Court certified the question in Williams v. State, 40 So. 3d 72
(Fla. 4th DCA 2010), almost a year before his initial brief was filed.

    The State counters that counsel is not required to anticipate changes
in the law. For support, the State notes that at the time of Pierre’s appeal,
precedent from this Court established that an instruction consistent with
the 2008 amendment was proper. See Morgan v. State, 42 So. 3d 862 (Fla.
4th DCA 2010), quashed, 134 So. 3d 449 (Fla. 2014).

    The Third District recently addressed a similar issue in Skinner v. State,
137 So. 3d 1164 (Fla. 3d DCA 2014). The court noted that “‘there are
cases that hold that appellate counsel is ineffective for failing to raise
favorable cases decided by other jurisdictions during the pendency of an
appeal, which could result in a reversal.’” Id. at 1166 (quoting Granberry
v. State, 919 So. 2d 699, 701 (Fla. 5th DCA 2006)); see also Lopez v. State,
68 So. 3d 332, 334 (Fla. 5th DCA 2011). In finding that Skinner’s appellate
counsel’s performance was deficient, the court reasoned that he failed to
raise the jury instruction issue and failed to provide the court with notice
of conflicting case law from another district. Skinner, 137 So. 3d at 1166.
The court found that these omissions constituted “a serious error and a
substantial deficiency” which “compromised the appellate process to such
extent that it undermined this Court’s confidence” in the outcome of the
direct appeal. Id. at 1166–67.

   Because counsel’s omissions in the instant case are analogous to those
in Skinner, we agree that the appellate process was substantially
compromised. Counsel was tasked with knowing that the instruction was
being challenged and that the First District had reached a conflicting
decision in Riesel. These issues should have been brought to our attention
during the appeal. For these reasons, we grant Pierre’s petition for writ of
habeas corpus, vacate his conviction for second-degree murder, and
remand for a new trial.

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  Petition granted; case remanded.

DAMOORGIAN, C.J., WARNER and STEVENSON, JJ., concur.

                         *           *     *

  Not final until disposition of timely filed motion for rehearing.




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