Arnold v. State
Arnold v. State
Opinion of the Court
We previously affirmed Edward Arnold’s conviction for attempted second-degree murder. Arnold v. State, 46 So.3d 52 (Fla. 2d DCA 2010) (table decision). Thereafter, Arnold filed a petition pursuant to Florida Rule of Appellate Procedure 9.141(d), alleging that his appellate counsel was ineffective. He contends that counsel was deficient in failing to argue that his jury was given a fundamentally erroneous instruction on attempted manslaughter by act. We agree.
Arnold was charged with attempted first-degree premeditated murder and was convicted of the category one lesser-included offense of attempted second-degree murder.
The notice of appeal in Arnold’s case was filed after the First District decided Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009), approved, 39 So.3d 252 (Fla. 2010), in which it held that the then-standard manslaughter by act instruction was fundamentally erroneous because it improperly contained an additional element of intent to kill.
Under materially identical circumstances, we held that appellate counsel in Betts was ineffective for failing to argue that the standard attempted manslaughter by act instruction was fundamentally erroneous. — So.3d at —. Guided by that
Because a new appeal would be redundant in this case, we reverse Arnold’s conviction for attempted second-degree murder, vacate the sentence, and remand for a new trial. See Betts, — So.3d at —. As we did in Betts, we certify that our decision is in conflict with Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), review granted, 64 So.3d 1262 (Fla. 2011).
Petition granted; conflict certified.
. The jury also found that Arnold discharged a firearm causing great bodily harm.
. The manslaughter by act instruction given to the jury at Arnold’s trial continues to be the standard instruction. See Fla. Std. Jury Instr. (Crim.) 6.6. However, a proposed amended instruction awaiting supreme court approval would remove the intent to kill element. Ba-nek v. State, 75 So.3d 762, 764 n. 1 (Fla. 2d DCA 2011).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.