Transcript
Erroneous Interpretation of Applicable Law I was convicted of three counts of attempted second-degree murder among other counts. In 2011, I filed a petition with the Fifth District of Appeal, State of Florida. In Argument Two of the petition, I argued that my appellate counsel was ineffective for failing to argue on appeal that the trial judge must instruct the jury on attempted voluntary manslaughter as necessarily lesser included offenses. On May 3, 2011, the Clerk issued an order to the State. The State's sole response was that when no timely request was made by my trial counsel, the trial judge's failure to instruct on a necessarily included offense in a noncapital case need to objected to by counsel. The State cited to Gomez, a Fifth DCA's decision in 2009. To support my argument, I cited to Wimberly, a Florida Supreme Court's decision in 1986, which stated that trial judges has no discretion whether to instruct jury on necessarily lesser included offenses. Once the judge determine on offense is lesser included, an instruction must be given. However, on August 1st, 2011, the Clerk denied the petition without written opinion. New Developments In 2016, the Florida Supreme Court issues its decision in Walton. There, the defendant had been convicted at trial of the charged offense of attempted second-degree murder. The Supreme Court held that the trial court was required (committed fundamental error) for failing to instruct the jury on attempted 1 of 3 voluntary manslaughter as a necessarily lesser included offense for attempted second-degree murder. The Court cited Wimberly, and remanded for a new trial. In 2018, the Supreme Court in Roberts, like the defendant in Walton, Roberts was charged and convicted of attempted second-degree murder and argued on appeal that the trial court must instruct the jury on attempted voluntary manslaughter as a lesser included offense of attempted second-degree murder. The Supreme Court relied on Walton and remanded for a new trial. Is Gomez a good law? The Florida Supreme Court's decisions in Walton and Roberts overruled Gomez, and it would be manifestly unjust to not grant me a new trial? The Supreme Court of Florida has held that appellate courts have the power to reconsider and correct erroneous rulings. Well, the Clerk of the Fifth District Court of Appeal stated otherwise. All petitions filed thereafter were denied. Corruption On May 3, 2019, the Fifth DCA in Lathan, the defendant was convicted after of attempted second-degree murder and contended that his appellate counsel ineffectively represented him during his direct appeal by failing to argue that the trial court must instruct the jury on the necessarily lesser included offense of attempted voluntary manslaughter. The Court denied the petition finding that Lathan's trial counsel affirmatively waived the necessarily lesser included offense when counsel requested no lesser included. However, the Court certified questions of Great Public Importance to the Florida 2 of 3 2013 Supreme Court because the Court has significant concerns as to the interplay between Walton, Roberts, etc. Reality The system does not appoint attorneys after direct appeal according to Florida law. Now, it is legal possible for the Fifth District Court of Appeal to continuously denying me relief and in turn, asks the Florida Supreme Court for clarification on the identical question of law. Greta Thunberg I admire you for your activism. I wish my sisters were courageously enough to protest a loving brother's freedom. February 17, '20. Newton McLeod Gulf Correctional Institution 500 Ike Steele Road Wewahitchka, Florida 3 of 3
