IN THE SUPREME COURT STATE OF FLORIDA FRANCISCO RANGEL, Petitioner, V. ' CASE NO.: Sct'l-433 DCA NO. : 2D11-835 STATE OF FLORIDA, Appellee. PETITOINER'S JURISDICTIONAL BRIEF On Review from the District Court of Appeal, Second District, State of Florida Francisco Rangel, pro se PROVIDED TO FRANKLIN Cl FOR MAILING ON INMATE INITIALS.±.Ê,.....
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IN THE SUPREME COURT STATE OF FLORIDA
FRANCISCO RANGEL Petitioner
V CASE NO Sctl-433 DCA NO 2D11-835
STATE OF FLORIDA Appellee
PETITOINERS JURISDICTIONAL BRIEF
On Review from the District Court of Appeal Second District State of Florida
Francisco Rangel pro se
PROVIDED TO FRANKLIN Cl FOR MAILING ON
INMATE INITIALSplusmnEcirc
TABLE OF CONTENTS
PAGE (S)
Table of Citations ii
Statement of the Case and Facts 1
Summary of the Argument 3
Jurisdictional Statement 3
Argument 4
WHETHER TALLEY V STATE 106 SO3D 1015 (FLA 2D DCA 2013) IS LIMITED TO ONLY
NON-DEADLY FORCE
Conclusion 6
Certificate of Service 6
Certification of Compliance 6
TABLE OF CITATIONS
CASES
State v Montgomery 39 So 3d 252 (Fla 2010) 1
Talley v State 106 So3d 1015 (Fla 2d DCA 2013) passim
STATUTES
sect776013 Fla Stat (2012) 4 5
11
STATEMENT OF THE CASE AND FACTS
Petitioner was charged by indictment whereto prior
trial the trial court severed counts one and two
Petitioner was found guilty on count one of the indictment
for second-degree murder Petitioner was also found guilty
by jury on count two of the indictment for attempted
second-degree murder
Petitioner was sentenced to life imprisonment on count
one with a twenty five year minimum mandatory and thirty
years imprisonment on count two with a twenty five year
minimum mandatory Petitioner timely appealed to the Second
District Court of Appeals
On appeal Petitioner argued that the trial court
committed fundamental error in instructing the jury on the
manslaughter and the attempted manslaughter charges as in
State v Montgomery 39 So3d 252 (Fla 2010) As well the
trial court committed further fundamental error in the
instructions on the justifiable use of deadly force as in
Talley v State 106 So3d 1015 (Fla 2d DCA 2013)
On April 3 2013 the Second District Court of Appeal
affirmed per curiam Petitioners judgment without opinion
However on Rehearing the Second District Granted
Rehearing and thereby withdrew the April 3 2013 opinion
and issued a written opinion on December 13 2013 finding
1
fundamental error in the instruction regarding attempted
manslaughter by act On that count Petitioner was granted
a new trial accordingly
However the Second District Court of Appeal found
that no error occurred with respect to the jury
instructions on the justifiable use of deadly force
provided in both the second degree murder count and the
attempted second degree murder count
Particularly the Second District Court concluded that
because Petitioner applied deadly force the issue of non-
deadly force as presented in Talley was not present
This conclusion is in opposition with the drafters
intent in the holding of Talley
2
SUMMARY OF THE ARGUMENT
The sole point presented is whether the holding in
Talley is restricted to defendants who only apply non-
deadly force
JURISDICTIONAL STATEMENT
The Florida Supreme Court has discretionary
jurisdiction to review a decision ofmiddot a district court of
appeal which impute a question of great public importance
3
ARGUMENT
WHETHER TALLEY V STATE 106 SO3D 1015 (FLA 2D DCA 2013) ONLY APPLIES TO DEFENDANTS WHO INFLICT NON-DEADLY FORCE
At bar the defense asserted was that Petitioner-in
self defense-shot two armed men who had tracked him down to
kill him Giving that this was the sole defense asserted
the jury was instructed in the justifiable use of deadly
force sect776013 Fla Stat (2012)
However this instruction erroneously altered the
punctuation which altered its context as in Talley
Nonetheless the Second District concluded that even
if this segment of instructions is the same as the
erroneous instructions given in Talley Petitioner is not
entitled to relief since the force applied in his case was
not disputed ie it was only deadly force applied by
Petitioner This conclusion is misplaced
The Second District is improperly assessing the
drafters intent of sect776013 as being restrained to only
non-deadly force incidents The clear language of the
Statute does not tilt in favor of this erroneous
conclusion
The legislatures intent of sect776013 Fla Stat (2012)
is clearly ascribed to allow individuals to rightfully
4
defend themselves without any restriction to the degree of
force
Petitioner had the Fourteenth Amendment right to
assert this justifiable use of deadly force defense and
further rights to have the jury properly instructed
thereto The facts of Petitioners case compelled
instructing the jury in light of the evidence presented and
his defense proffered
The Second District Court of Appeal has improperly
interpreted its holding of Talley to apply only to
defendants who inflict non-deadly force in regards the
charged offense This interpretation creates a Fourteenth
Amendment due processequal protection concern
Moreover during the prosecutors closing arguments at
bar the prosecutor highlighted that it was the Petitioner
who was the only one that used deadly force This
argument directly highlighted the erroneous instructions
As in Talley this erroneous instruction coupled with
the prosecutors closing arguments has negated Petitioners
sole the defense asserted
In sum giving that Petitioner is protected by the
Fourteenth Amendment due process and equal protection
clause Petitioner urges this Court to consider whether the
5
holding of Talley and sect776013 applies only to individuals
who use non-deadly force
CONCLUSION
This Court has discretionary jurisdiction to review
the decision below and this Court should exercise that
jurisdiction to consider the merits of Petitioners
argument
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing
has been furnished to the Office of the Attorney General at
3507 E Frontage Rd Ste 200 Tampa Florida 33607 by
placing the same in the hands of a Franklin Correctional
Institution Official for mailing on this ]p_ day of March
2014
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this Brief complies with the
font requirements of Rule 9210 (a) (2) of the Florida Rules
of Appellate Procedure
Francisco Rangel DC 133740 Franklin Correctional Institution 1760 Hwy 67 North Carrabelle Florida 32322-2157
6
IN THE SUPREME COURT STATE OF FLORIDA
FRANCISCO RANGEL Petitioner
V CASE NO DCA NO 2D11-835
STATE OF FLORIDA Appellee
APPENDIX
COMES NOW Petitioner FRANCISCO RANGEL pursuant to Fla R
App P Rule 9120 (d) and files this Appendix accompanied
thereto Petitioners Jurisdictional Brief that is being filed
simultaneously
INDEX TO APPENDIX
EXHIBIT A A conformed copy of the decision of the Second
District Court of Appeal
Petitioner
FRANCISCO RANGEL
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been
furnished to the Office of the Attorney General at 3507 E
Frontage Rd Ste 200 Tampa Florida 33607 by placing the same
in the hands of a Franklin Correctional Institution Official
for mailing on this _()_ day of March 2014
Francisco Rangel DC 133740 Franklin Correctional Institution 1760 Hwy 67 North Carrabelle Florida 32322-2157
2
EXHIBIT-A
IN THE SECOND DISTRICT COURT OF APPEAL LAKELAND FLORIDA
December 13 2013
FRANCISCO RANGEL ) )
Appellant ) )
v ) Case No 2D11-835 )
STATE OF FLORIDA ) )
Appellee )
Upon consideration of the Appellants motion for rehearing filed April 15
2013 it is
ORDERED that the Appellants motion for rehearing is granted This
courts opinion dated April 3 2013 is withdrawn and the attached opinion is substituted
therefor
I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER
ES B R LERK 06
NOT FINAL UNTIL TIME EXPlRES TO FILE REHEARING MOTION AND IF FILED DETERMlNED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
FRANCISCO RANGEL ) )
Appellant ) ) _ _
v ) Case No 2D11-835 )
STATE OF FLORIDA ) )
Appellee )
Opinion filed December 13 2013
Appeal from the Circuit Court for Hillsborough County Emmett Lamar Battles Judge
Howard L Dimmig 11 Public Defender and John C Fisher Assistant Public Defender Bartow for Appellant
Pamela Jo Bondi Attorney General Tallahassee and Diana K Bock Assistant Attorney General Tampa for Appellee
WALLACE Judge
Francisco Rangel was charged in the court below in a fourteen-count
indictment The trial court severed counts one and two for trial A jury found Mr Rangel
guilty on count one of the indictment for the second-degree murder of Michael Longoria
while possessing and discharging a firearm The jury also found Mr Rangel guilty on
count two of the indictment for the attempted second-degree murder of Vidal Quijada
while possessing and discharging a firearm The trial court adjudged Mr Rangel to be
guilty of both offenses and sentenced him to life imprisonment on count one with a
twenty-five-year minimum and thirty years in prison on count two with a twenty-five-year
minimum The sentences were designated to run consecutively Mr Rangel has
appealed his judgment and sentences on counts one and two of the indictment
Mr Rangel argues that the trial court committed fundamental error in three
of the instructions given to the jury2 We find merit only in Mr Rangels argument
After Mr Rangel was sentenced on counts one and two he entered negotiated pleas to counts three through fourteen of the indictment The trial court sentenced him to life in prison on six of the counts fifteen years on five of the counts and five years on the remaining counts The trial court imposed minimum mandatory sentences varying between three and twenty-five years on eight of the counts All of the sentences were designated to run consecutively to each other and to the sentences previously imposed on counts one and two The judgment and sentences imposed on counts three through fourteen are not at issue in this appeal
2On April 3 2013 this court affirmed Mr Rangels judgment and sentences imposed on counts one and two of the indictment against him in a per curiam decision without a written opinion In a motion for rehearing Mr Rangels appellate counsel candidly informed this court that he overlooked the jury instruction issues considered herein when he prepared the initial brief Generally we will not consider new arguments made on rehearing that a party has not advanced initially However we exercise our discretion to consider Mr Rangels new arguments on rehearing to avoid middot further appellate filings and to limit the waste of judicial resources If we simply denied Mr Rangels motion for rehearing then a petition for ineffective assistance of appellate counsel would inevitably follow and the clerk would assign another panel to review the matter See Banek v State 75 So 3d 762 765 (Fla 2d DCA 2011 ) (concluding that Baneks appellate counsel rendered ineffective assistance by failing to seek permission to file a supplemental brief on the issue of fundamental error in the attempted manslaughter by act instruction) Pierce v State 121 So 3d 1091 (Fla 5th DCA 2013) (holding that appellate counsel rendered ineffective assistance by failing to argue that it was fundamental error for the trial court to give the standard jun instruction for attempted manslaughter containing the erroneous element that the defendant committed an act with the intent to cause the death of the victim)
- 2 shy
concerning the jury instruction on the lesser-included offense of attempted
manslaughter on count two relating to the victim Vidal Quijada
I THE INSTRUCTION ON MANSLAUGHTER BY ACT
With regard to count one involving the victim Michael Longoria Mr
Rangel argues that the lesser-included offense instruction on manslaughter by act was
fundamentally erroneous because it instructed the jury that it could find Mr Rangel
guilty of the lesser-included offense of manslaughter if the State proved that
1 Michael Longoria is dead
2 Francisco Rangel committed an act which was intended to cause the death of Michael Longoria
We find no error fundamental or othenvise because the instruction did
not contain the language Mr Rangel describes Instead paragraph 2 of the instruction
informed the jury that it had to find that Francisco Rangels act(s) caused the death of
Michael Longoria The instruction further informed the jury that [i]n order to convict of
manslaughter by act it is not necessary for the State to prove that the defendant had an
intent to cause death only an intent to commit an act that was not justified or excusable
and which caused death This instruction was not erroneous See State v
Montgomery 39 So 3d 252 259-60 (Fla 2010) ([T]he intent which the State must
prove for 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) We also note that the
written instructions provided to the jury were identical to the oral instructions issued by
the trial judge Accordingly we affirm Mr Rangels judgment and sentence for the
second-degree murder of Michael Longoria
- 3 shy
ll THE INSTRUCTION ON ATTEMPTED MANSLAUGHTER BY ACT
With regard to count two relating to Vidal Quijada the trial court instructed
the jury that to find Mr Rangel guilty of the lesser-included offense of attempted
manslaughter the State was required to prove that Francisco Rangel committed an
act which was intended to cause the death of Vidal Quijada and would have resulted in
the death of Vida Quijada except that someone prevented Francisco Rangel from killing
Vidal Quijada or he failed to do so3 The Supreme Court of Florida has declared that
the issuance of an almost identical instruction constituted fundamental error in Williams
v State 123 So 3d 23 27 (Fla 2013) ([A] trial court commits fundamental error in
giving the standard jury instruction on attempted manslaughter by act where the
defendant is convicted of a crimeno more than one step removed from the improperly
instructed offense) Accordingly we reverse Mr Rangels judgment and sentence for
the attempted murder of Vidal Quijada and remand for a new trial on this count only
111 THE INSTRUCTION ON THE JUSTIFIABLE USE OF DEADLY FORCE
Mr Rangel argues that the jury instruction on justifiable use of deadly
force was fundamentally erroneous The trial courts instruction to the jury on this issue
included the following language
If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be he had no duty to retreat and had the right to stand his ground and meet force with force including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of Attempted Murder or Armed Robbery
(Emphasis added) However section 776013 Florida Statutes (2010) provides
3Again the trial courts oral instruction was identical to the written instruction
- 4 shy
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force includinqmiddotdeadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony
(Emphasis added) Although the standard jury instruction follows the statutory
language it sets off the phrase including deadly force with an additional comma This
court found the use of this language to constitute fundamental error under the
circumstances presented in Talley v State 106 So 3d 1015 (Fla 2d DCA 2013) The
Talley court explained its reasoning as follows
[T]he erroneous comma eliminated Talleys sole defense by suggesting that Talley had no right to defend himself with any force whatsoever unless Mullendore threatened him with deadly force Even if Mullendore attacked Talley with nondeadly force Talley would have the duty to retreat according to this erroneous instruction
at 1017 However the instruction at issue in Talley was Florida Standard Jury
Instruction (Criminal) 36(g) Justifiable Use of Non-Deadly Force which is the
standard self-defense instruction E Talleys only defense was that the alleged victim
John Mullendore had attacked him with nondeadly force and thus Talley was justified in
using nondeadly force in self defense amp at 1016 Accordingly the Talley court held
that the instruction given in that case was erroneous because the justifiable use of
nondeadly force was Talleys only defense and any confusion caused by the instruction
may have deprived Talley of a fair trial because his defense was plausible Jjln at 1018
(emphasis added) The Talley court also noted that the States reliance on the
erroneous instruction in its closing argument supported the conclusion that the error
was fundamental Id at 1017
Although the jury instruction on justifiable use of deadly force Florida
Standard Jury instruction (Criminal) 36(f) also contains the errant comma that caused
the problem in Talley none of the conditions leading to the conclusion that the
instruction was fundamentally erroneous in Talley are present here The first and most
obvious difference is that unlike in Talley Mr Rangel requested and the trial court
instructed the jury on the justifiable use of deadly force not nondeadly force The
facts in this case did not warrant an instruction on nondeadly force because Mr Rangel
unquestionably used deadly force-he shot both victims with a firearm Therefore the
Talley courts concern that the erroneous placement of the comma had the potential to
vitiate Talleys sole defense by causing the jury to think that Talley had no right to
defend himself with any force at all unless he was being threatened with deadly force is
not present here Furthermore because Mr Rangels sole defense was the justifiable
use of deadly force the prosecutors comment in closing that the evidence did not
support a finding that when Mr Rangel fired those shots he was in imminent danger of
death or great bodily harm was a proper comment on the evidence See Merck v
State 975 So 2d 1054 1061 (Fla 2007) (Closing argument is an opportunity for
counsel to review the evidence and to explicate those inferences which may reasonably
be drawn from the evidence)
For these reasons we conclude that even though Florida Jury Instruction
(Criminal) 36(f) contains the same errant comma found in Instruction 36(g) the error in
this instruction is neither fundamental nor harmful where as in this case the
defendants sole defense at trial is the justifiable use of deadly force
IV CONCLUSION
There was no error with respect to the jury instruction on manslaughter or
the jury instruction on justifiable use of deadly force However because the lesser-
included offense of attempted manslaughter was one step removed from the primary
charge upon which the jury found Mr Rangel guilty the instruction on that charge
constituted fundamental error Williams 123 So 3d at 27 Accordingly we reverse Mr
Rangels judgment and sentence on count two of the indictment for the attempted
second-degree murder of Vidal Quijada and remand for a new trial on that count only
In all other respects we affirm Mr Rangels judgments and sentences
Affirmed inpart reversed in part and remanded
ALTENBERND and LaROSE JJ Concur
- 7 shy
TABLE OF CONTENTS
PAGE (S)
Table of Citations ii
Statement of the Case and Facts 1
Summary of the Argument 3
Jurisdictional Statement 3
Argument 4
WHETHER TALLEY V STATE 106 SO3D 1015 (FLA 2D DCA 2013) IS LIMITED TO ONLY
NON-DEADLY FORCE
Conclusion 6
Certificate of Service 6
Certification of Compliance 6
TABLE OF CITATIONS
CASES
State v Montgomery 39 So 3d 252 (Fla 2010) 1
Talley v State 106 So3d 1015 (Fla 2d DCA 2013) passim
STATUTES
sect776013 Fla Stat (2012) 4 5
11
STATEMENT OF THE CASE AND FACTS
Petitioner was charged by indictment whereto prior
trial the trial court severed counts one and two
Petitioner was found guilty on count one of the indictment
for second-degree murder Petitioner was also found guilty
by jury on count two of the indictment for attempted
second-degree murder
Petitioner was sentenced to life imprisonment on count
one with a twenty five year minimum mandatory and thirty
years imprisonment on count two with a twenty five year
minimum mandatory Petitioner timely appealed to the Second
District Court of Appeals
On appeal Petitioner argued that the trial court
committed fundamental error in instructing the jury on the
manslaughter and the attempted manslaughter charges as in
State v Montgomery 39 So3d 252 (Fla 2010) As well the
trial court committed further fundamental error in the
instructions on the justifiable use of deadly force as in
Talley v State 106 So3d 1015 (Fla 2d DCA 2013)
On April 3 2013 the Second District Court of Appeal
affirmed per curiam Petitioners judgment without opinion
However on Rehearing the Second District Granted
Rehearing and thereby withdrew the April 3 2013 opinion
and issued a written opinion on December 13 2013 finding
1
fundamental error in the instruction regarding attempted
manslaughter by act On that count Petitioner was granted
a new trial accordingly
However the Second District Court of Appeal found
that no error occurred with respect to the jury
instructions on the justifiable use of deadly force
provided in both the second degree murder count and the
attempted second degree murder count
Particularly the Second District Court concluded that
because Petitioner applied deadly force the issue of non-
deadly force as presented in Talley was not present
This conclusion is in opposition with the drafters
intent in the holding of Talley
2
SUMMARY OF THE ARGUMENT
The sole point presented is whether the holding in
Talley is restricted to defendants who only apply non-
deadly force
JURISDICTIONAL STATEMENT
The Florida Supreme Court has discretionary
jurisdiction to review a decision ofmiddot a district court of
appeal which impute a question of great public importance
3
ARGUMENT
WHETHER TALLEY V STATE 106 SO3D 1015 (FLA 2D DCA 2013) ONLY APPLIES TO DEFENDANTS WHO INFLICT NON-DEADLY FORCE
At bar the defense asserted was that Petitioner-in
self defense-shot two armed men who had tracked him down to
kill him Giving that this was the sole defense asserted
the jury was instructed in the justifiable use of deadly
force sect776013 Fla Stat (2012)
However this instruction erroneously altered the
punctuation which altered its context as in Talley
Nonetheless the Second District concluded that even
if this segment of instructions is the same as the
erroneous instructions given in Talley Petitioner is not
entitled to relief since the force applied in his case was
not disputed ie it was only deadly force applied by
Petitioner This conclusion is misplaced
The Second District is improperly assessing the
drafters intent of sect776013 as being restrained to only
non-deadly force incidents The clear language of the
Statute does not tilt in favor of this erroneous
conclusion
The legislatures intent of sect776013 Fla Stat (2012)
is clearly ascribed to allow individuals to rightfully
4
defend themselves without any restriction to the degree of
force
Petitioner had the Fourteenth Amendment right to
assert this justifiable use of deadly force defense and
further rights to have the jury properly instructed
thereto The facts of Petitioners case compelled
instructing the jury in light of the evidence presented and
his defense proffered
The Second District Court of Appeal has improperly
interpreted its holding of Talley to apply only to
defendants who inflict non-deadly force in regards the
charged offense This interpretation creates a Fourteenth
Amendment due processequal protection concern
Moreover during the prosecutors closing arguments at
bar the prosecutor highlighted that it was the Petitioner
who was the only one that used deadly force This
argument directly highlighted the erroneous instructions
As in Talley this erroneous instruction coupled with
the prosecutors closing arguments has negated Petitioners
sole the defense asserted
In sum giving that Petitioner is protected by the
Fourteenth Amendment due process and equal protection
clause Petitioner urges this Court to consider whether the
5
holding of Talley and sect776013 applies only to individuals
who use non-deadly force
CONCLUSION
This Court has discretionary jurisdiction to review
the decision below and this Court should exercise that
jurisdiction to consider the merits of Petitioners
argument
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing
has been furnished to the Office of the Attorney General at
3507 E Frontage Rd Ste 200 Tampa Florida 33607 by
placing the same in the hands of a Franklin Correctional
Institution Official for mailing on this ]p_ day of March
2014
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this Brief complies with the
font requirements of Rule 9210 (a) (2) of the Florida Rules
of Appellate Procedure
Francisco Rangel DC 133740 Franklin Correctional Institution 1760 Hwy 67 North Carrabelle Florida 32322-2157
6
IN THE SUPREME COURT STATE OF FLORIDA
FRANCISCO RANGEL Petitioner
V CASE NO DCA NO 2D11-835
STATE OF FLORIDA Appellee
APPENDIX
COMES NOW Petitioner FRANCISCO RANGEL pursuant to Fla R
App P Rule 9120 (d) and files this Appendix accompanied
thereto Petitioners Jurisdictional Brief that is being filed
simultaneously
INDEX TO APPENDIX
EXHIBIT A A conformed copy of the decision of the Second
District Court of Appeal
Petitioner
FRANCISCO RANGEL
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been
furnished to the Office of the Attorney General at 3507 E
Frontage Rd Ste 200 Tampa Florida 33607 by placing the same
in the hands of a Franklin Correctional Institution Official
for mailing on this _()_ day of March 2014
Francisco Rangel DC 133740 Franklin Correctional Institution 1760 Hwy 67 North Carrabelle Florida 32322-2157
2
EXHIBIT-A
IN THE SECOND DISTRICT COURT OF APPEAL LAKELAND FLORIDA
December 13 2013
FRANCISCO RANGEL ) )
Appellant ) )
v ) Case No 2D11-835 )
STATE OF FLORIDA ) )
Appellee )
Upon consideration of the Appellants motion for rehearing filed April 15
2013 it is
ORDERED that the Appellants motion for rehearing is granted This
courts opinion dated April 3 2013 is withdrawn and the attached opinion is substituted
therefor
I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER
ES B R LERK 06
NOT FINAL UNTIL TIME EXPlRES TO FILE REHEARING MOTION AND IF FILED DETERMlNED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
FRANCISCO RANGEL ) )
Appellant ) ) _ _
v ) Case No 2D11-835 )
STATE OF FLORIDA ) )
Appellee )
Opinion filed December 13 2013
Appeal from the Circuit Court for Hillsborough County Emmett Lamar Battles Judge
Howard L Dimmig 11 Public Defender and John C Fisher Assistant Public Defender Bartow for Appellant
Pamela Jo Bondi Attorney General Tallahassee and Diana K Bock Assistant Attorney General Tampa for Appellee
WALLACE Judge
Francisco Rangel was charged in the court below in a fourteen-count
indictment The trial court severed counts one and two for trial A jury found Mr Rangel
guilty on count one of the indictment for the second-degree murder of Michael Longoria
while possessing and discharging a firearm The jury also found Mr Rangel guilty on
count two of the indictment for the attempted second-degree murder of Vidal Quijada
while possessing and discharging a firearm The trial court adjudged Mr Rangel to be
guilty of both offenses and sentenced him to life imprisonment on count one with a
twenty-five-year minimum and thirty years in prison on count two with a twenty-five-year
minimum The sentences were designated to run consecutively Mr Rangel has
appealed his judgment and sentences on counts one and two of the indictment
Mr Rangel argues that the trial court committed fundamental error in three
of the instructions given to the jury2 We find merit only in Mr Rangels argument
After Mr Rangel was sentenced on counts one and two he entered negotiated pleas to counts three through fourteen of the indictment The trial court sentenced him to life in prison on six of the counts fifteen years on five of the counts and five years on the remaining counts The trial court imposed minimum mandatory sentences varying between three and twenty-five years on eight of the counts All of the sentences were designated to run consecutively to each other and to the sentences previously imposed on counts one and two The judgment and sentences imposed on counts three through fourteen are not at issue in this appeal
2On April 3 2013 this court affirmed Mr Rangels judgment and sentences imposed on counts one and two of the indictment against him in a per curiam decision without a written opinion In a motion for rehearing Mr Rangels appellate counsel candidly informed this court that he overlooked the jury instruction issues considered herein when he prepared the initial brief Generally we will not consider new arguments made on rehearing that a party has not advanced initially However we exercise our discretion to consider Mr Rangels new arguments on rehearing to avoid middot further appellate filings and to limit the waste of judicial resources If we simply denied Mr Rangels motion for rehearing then a petition for ineffective assistance of appellate counsel would inevitably follow and the clerk would assign another panel to review the matter See Banek v State 75 So 3d 762 765 (Fla 2d DCA 2011 ) (concluding that Baneks appellate counsel rendered ineffective assistance by failing to seek permission to file a supplemental brief on the issue of fundamental error in the attempted manslaughter by act instruction) Pierce v State 121 So 3d 1091 (Fla 5th DCA 2013) (holding that appellate counsel rendered ineffective assistance by failing to argue that it was fundamental error for the trial court to give the standard jun instruction for attempted manslaughter containing the erroneous element that the defendant committed an act with the intent to cause the death of the victim)
- 2 shy
concerning the jury instruction on the lesser-included offense of attempted
manslaughter on count two relating to the victim Vidal Quijada
I THE INSTRUCTION ON MANSLAUGHTER BY ACT
With regard to count one involving the victim Michael Longoria Mr
Rangel argues that the lesser-included offense instruction on manslaughter by act was
fundamentally erroneous because it instructed the jury that it could find Mr Rangel
guilty of the lesser-included offense of manslaughter if the State proved that
1 Michael Longoria is dead
2 Francisco Rangel committed an act which was intended to cause the death of Michael Longoria
We find no error fundamental or othenvise because the instruction did
not contain the language Mr Rangel describes Instead paragraph 2 of the instruction
informed the jury that it had to find that Francisco Rangels act(s) caused the death of
Michael Longoria The instruction further informed the jury that [i]n order to convict of
manslaughter by act it is not necessary for the State to prove that the defendant had an
intent to cause death only an intent to commit an act that was not justified or excusable
and which caused death This instruction was not erroneous See State v
Montgomery 39 So 3d 252 259-60 (Fla 2010) ([T]he intent which the State must
prove for 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) We also note that the
written instructions provided to the jury were identical to the oral instructions issued by
the trial judge Accordingly we affirm Mr Rangels judgment and sentence for the
second-degree murder of Michael Longoria
- 3 shy
ll THE INSTRUCTION ON ATTEMPTED MANSLAUGHTER BY ACT
With regard to count two relating to Vidal Quijada the trial court instructed
the jury that to find Mr Rangel guilty of the lesser-included offense of attempted
manslaughter the State was required to prove that Francisco Rangel committed an
act which was intended to cause the death of Vidal Quijada and would have resulted in
the death of Vida Quijada except that someone prevented Francisco Rangel from killing
Vidal Quijada or he failed to do so3 The Supreme Court of Florida has declared that
the issuance of an almost identical instruction constituted fundamental error in Williams
v State 123 So 3d 23 27 (Fla 2013) ([A] trial court commits fundamental error in
giving the standard jury instruction on attempted manslaughter by act where the
defendant is convicted of a crimeno more than one step removed from the improperly
instructed offense) Accordingly we reverse Mr Rangels judgment and sentence for
the attempted murder of Vidal Quijada and remand for a new trial on this count only
111 THE INSTRUCTION ON THE JUSTIFIABLE USE OF DEADLY FORCE
Mr Rangel argues that the jury instruction on justifiable use of deadly
force was fundamentally erroneous The trial courts instruction to the jury on this issue
included the following language
If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be he had no duty to retreat and had the right to stand his ground and meet force with force including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of Attempted Murder or Armed Robbery
(Emphasis added) However section 776013 Florida Statutes (2010) provides
3Again the trial courts oral instruction was identical to the written instruction
- 4 shy
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force includinqmiddotdeadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony
(Emphasis added) Although the standard jury instruction follows the statutory
language it sets off the phrase including deadly force with an additional comma This
court found the use of this language to constitute fundamental error under the
circumstances presented in Talley v State 106 So 3d 1015 (Fla 2d DCA 2013) The
Talley court explained its reasoning as follows
[T]he erroneous comma eliminated Talleys sole defense by suggesting that Talley had no right to defend himself with any force whatsoever unless Mullendore threatened him with deadly force Even if Mullendore attacked Talley with nondeadly force Talley would have the duty to retreat according to this erroneous instruction
at 1017 However the instruction at issue in Talley was Florida Standard Jury
Instruction (Criminal) 36(g) Justifiable Use of Non-Deadly Force which is the
standard self-defense instruction E Talleys only defense was that the alleged victim
John Mullendore had attacked him with nondeadly force and thus Talley was justified in
using nondeadly force in self defense amp at 1016 Accordingly the Talley court held
that the instruction given in that case was erroneous because the justifiable use of
nondeadly force was Talleys only defense and any confusion caused by the instruction
may have deprived Talley of a fair trial because his defense was plausible Jjln at 1018
(emphasis added) The Talley court also noted that the States reliance on the
erroneous instruction in its closing argument supported the conclusion that the error
was fundamental Id at 1017
Although the jury instruction on justifiable use of deadly force Florida
Standard Jury instruction (Criminal) 36(f) also contains the errant comma that caused
the problem in Talley none of the conditions leading to the conclusion that the
instruction was fundamentally erroneous in Talley are present here The first and most
obvious difference is that unlike in Talley Mr Rangel requested and the trial court
instructed the jury on the justifiable use of deadly force not nondeadly force The
facts in this case did not warrant an instruction on nondeadly force because Mr Rangel
unquestionably used deadly force-he shot both victims with a firearm Therefore the
Talley courts concern that the erroneous placement of the comma had the potential to
vitiate Talleys sole defense by causing the jury to think that Talley had no right to
defend himself with any force at all unless he was being threatened with deadly force is
not present here Furthermore because Mr Rangels sole defense was the justifiable
use of deadly force the prosecutors comment in closing that the evidence did not
support a finding that when Mr Rangel fired those shots he was in imminent danger of
death or great bodily harm was a proper comment on the evidence See Merck v
State 975 So 2d 1054 1061 (Fla 2007) (Closing argument is an opportunity for
counsel to review the evidence and to explicate those inferences which may reasonably
be drawn from the evidence)
For these reasons we conclude that even though Florida Jury Instruction
(Criminal) 36(f) contains the same errant comma found in Instruction 36(g) the error in
this instruction is neither fundamental nor harmful where as in this case the
defendants sole defense at trial is the justifiable use of deadly force
IV CONCLUSION
There was no error with respect to the jury instruction on manslaughter or
the jury instruction on justifiable use of deadly force However because the lesser-
included offense of attempted manslaughter was one step removed from the primary
charge upon which the jury found Mr Rangel guilty the instruction on that charge
constituted fundamental error Williams 123 So 3d at 27 Accordingly we reverse Mr
Rangels judgment and sentence on count two of the indictment for the attempted
second-degree murder of Vidal Quijada and remand for a new trial on that count only
In all other respects we affirm Mr Rangels judgments and sentences
Affirmed inpart reversed in part and remanded
ALTENBERND and LaROSE JJ Concur
- 7 shy
TABLE OF CITATIONS
CASES
State v Montgomery 39 So 3d 252 (Fla 2010) 1
Talley v State 106 So3d 1015 (Fla 2d DCA 2013) passim
STATUTES
sect776013 Fla Stat (2012) 4 5
11
STATEMENT OF THE CASE AND FACTS
Petitioner was charged by indictment whereto prior
trial the trial court severed counts one and two
Petitioner was found guilty on count one of the indictment
for second-degree murder Petitioner was also found guilty
by jury on count two of the indictment for attempted
second-degree murder
Petitioner was sentenced to life imprisonment on count
one with a twenty five year minimum mandatory and thirty
years imprisonment on count two with a twenty five year
minimum mandatory Petitioner timely appealed to the Second
District Court of Appeals
On appeal Petitioner argued that the trial court
committed fundamental error in instructing the jury on the
manslaughter and the attempted manslaughter charges as in
State v Montgomery 39 So3d 252 (Fla 2010) As well the
trial court committed further fundamental error in the
instructions on the justifiable use of deadly force as in
Talley v State 106 So3d 1015 (Fla 2d DCA 2013)
On April 3 2013 the Second District Court of Appeal
affirmed per curiam Petitioners judgment without opinion
However on Rehearing the Second District Granted
Rehearing and thereby withdrew the April 3 2013 opinion
and issued a written opinion on December 13 2013 finding
1
fundamental error in the instruction regarding attempted
manslaughter by act On that count Petitioner was granted
a new trial accordingly
However the Second District Court of Appeal found
that no error occurred with respect to the jury
instructions on the justifiable use of deadly force
provided in both the second degree murder count and the
attempted second degree murder count
Particularly the Second District Court concluded that
because Petitioner applied deadly force the issue of non-
deadly force as presented in Talley was not present
This conclusion is in opposition with the drafters
intent in the holding of Talley
2
SUMMARY OF THE ARGUMENT
The sole point presented is whether the holding in
Talley is restricted to defendants who only apply non-
deadly force
JURISDICTIONAL STATEMENT
The Florida Supreme Court has discretionary
jurisdiction to review a decision ofmiddot a district court of
appeal which impute a question of great public importance
3
ARGUMENT
WHETHER TALLEY V STATE 106 SO3D 1015 (FLA 2D DCA 2013) ONLY APPLIES TO DEFENDANTS WHO INFLICT NON-DEADLY FORCE
At bar the defense asserted was that Petitioner-in
self defense-shot two armed men who had tracked him down to
kill him Giving that this was the sole defense asserted
the jury was instructed in the justifiable use of deadly
force sect776013 Fla Stat (2012)
However this instruction erroneously altered the
punctuation which altered its context as in Talley
Nonetheless the Second District concluded that even
if this segment of instructions is the same as the
erroneous instructions given in Talley Petitioner is not
entitled to relief since the force applied in his case was
not disputed ie it was only deadly force applied by
Petitioner This conclusion is misplaced
The Second District is improperly assessing the
drafters intent of sect776013 as being restrained to only
non-deadly force incidents The clear language of the
Statute does not tilt in favor of this erroneous
conclusion
The legislatures intent of sect776013 Fla Stat (2012)
is clearly ascribed to allow individuals to rightfully
4
defend themselves without any restriction to the degree of
force
Petitioner had the Fourteenth Amendment right to
assert this justifiable use of deadly force defense and
further rights to have the jury properly instructed
thereto The facts of Petitioners case compelled
instructing the jury in light of the evidence presented and
his defense proffered
The Second District Court of Appeal has improperly
interpreted its holding of Talley to apply only to
defendants who inflict non-deadly force in regards the
charged offense This interpretation creates a Fourteenth
Amendment due processequal protection concern
Moreover during the prosecutors closing arguments at
bar the prosecutor highlighted that it was the Petitioner
who was the only one that used deadly force This
argument directly highlighted the erroneous instructions
As in Talley this erroneous instruction coupled with
the prosecutors closing arguments has negated Petitioners
sole the defense asserted
In sum giving that Petitioner is protected by the
Fourteenth Amendment due process and equal protection
clause Petitioner urges this Court to consider whether the
5
holding of Talley and sect776013 applies only to individuals
who use non-deadly force
CONCLUSION
This Court has discretionary jurisdiction to review
the decision below and this Court should exercise that
jurisdiction to consider the merits of Petitioners
argument
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing
has been furnished to the Office of the Attorney General at
3507 E Frontage Rd Ste 200 Tampa Florida 33607 by
placing the same in the hands of a Franklin Correctional
Institution Official for mailing on this ]p_ day of March
2014
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this Brief complies with the
font requirements of Rule 9210 (a) (2) of the Florida Rules
of Appellate Procedure
Francisco Rangel DC 133740 Franklin Correctional Institution 1760 Hwy 67 North Carrabelle Florida 32322-2157
6
IN THE SUPREME COURT STATE OF FLORIDA
FRANCISCO RANGEL Petitioner
V CASE NO DCA NO 2D11-835
STATE OF FLORIDA Appellee
APPENDIX
COMES NOW Petitioner FRANCISCO RANGEL pursuant to Fla R
App P Rule 9120 (d) and files this Appendix accompanied
thereto Petitioners Jurisdictional Brief that is being filed
simultaneously
INDEX TO APPENDIX
EXHIBIT A A conformed copy of the decision of the Second
District Court of Appeal
Petitioner
FRANCISCO RANGEL
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been
furnished to the Office of the Attorney General at 3507 E
Frontage Rd Ste 200 Tampa Florida 33607 by placing the same
in the hands of a Franklin Correctional Institution Official
for mailing on this _()_ day of March 2014
Francisco Rangel DC 133740 Franklin Correctional Institution 1760 Hwy 67 North Carrabelle Florida 32322-2157
2
EXHIBIT-A
IN THE SECOND DISTRICT COURT OF APPEAL LAKELAND FLORIDA
December 13 2013
FRANCISCO RANGEL ) )
Appellant ) )
v ) Case No 2D11-835 )
STATE OF FLORIDA ) )
Appellee )
Upon consideration of the Appellants motion for rehearing filed April 15
2013 it is
ORDERED that the Appellants motion for rehearing is granted This
courts opinion dated April 3 2013 is withdrawn and the attached opinion is substituted
therefor
I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER
ES B R LERK 06
NOT FINAL UNTIL TIME EXPlRES TO FILE REHEARING MOTION AND IF FILED DETERMlNED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
FRANCISCO RANGEL ) )
Appellant ) ) _ _
v ) Case No 2D11-835 )
STATE OF FLORIDA ) )
Appellee )
Opinion filed December 13 2013
Appeal from the Circuit Court for Hillsborough County Emmett Lamar Battles Judge
Howard L Dimmig 11 Public Defender and John C Fisher Assistant Public Defender Bartow for Appellant
Pamela Jo Bondi Attorney General Tallahassee and Diana K Bock Assistant Attorney General Tampa for Appellee
WALLACE Judge
Francisco Rangel was charged in the court below in a fourteen-count
indictment The trial court severed counts one and two for trial A jury found Mr Rangel
guilty on count one of the indictment for the second-degree murder of Michael Longoria
while possessing and discharging a firearm The jury also found Mr Rangel guilty on
count two of the indictment for the attempted second-degree murder of Vidal Quijada
while possessing and discharging a firearm The trial court adjudged Mr Rangel to be
guilty of both offenses and sentenced him to life imprisonment on count one with a
twenty-five-year minimum and thirty years in prison on count two with a twenty-five-year
minimum The sentences were designated to run consecutively Mr Rangel has
appealed his judgment and sentences on counts one and two of the indictment
Mr Rangel argues that the trial court committed fundamental error in three
of the instructions given to the jury2 We find merit only in Mr Rangels argument
After Mr Rangel was sentenced on counts one and two he entered negotiated pleas to counts three through fourteen of the indictment The trial court sentenced him to life in prison on six of the counts fifteen years on five of the counts and five years on the remaining counts The trial court imposed minimum mandatory sentences varying between three and twenty-five years on eight of the counts All of the sentences were designated to run consecutively to each other and to the sentences previously imposed on counts one and two The judgment and sentences imposed on counts three through fourteen are not at issue in this appeal
2On April 3 2013 this court affirmed Mr Rangels judgment and sentences imposed on counts one and two of the indictment against him in a per curiam decision without a written opinion In a motion for rehearing Mr Rangels appellate counsel candidly informed this court that he overlooked the jury instruction issues considered herein when he prepared the initial brief Generally we will not consider new arguments made on rehearing that a party has not advanced initially However we exercise our discretion to consider Mr Rangels new arguments on rehearing to avoid middot further appellate filings and to limit the waste of judicial resources If we simply denied Mr Rangels motion for rehearing then a petition for ineffective assistance of appellate counsel would inevitably follow and the clerk would assign another panel to review the matter See Banek v State 75 So 3d 762 765 (Fla 2d DCA 2011 ) (concluding that Baneks appellate counsel rendered ineffective assistance by failing to seek permission to file a supplemental brief on the issue of fundamental error in the attempted manslaughter by act instruction) Pierce v State 121 So 3d 1091 (Fla 5th DCA 2013) (holding that appellate counsel rendered ineffective assistance by failing to argue that it was fundamental error for the trial court to give the standard jun instruction for attempted manslaughter containing the erroneous element that the defendant committed an act with the intent to cause the death of the victim)
- 2 shy
concerning the jury instruction on the lesser-included offense of attempted
manslaughter on count two relating to the victim Vidal Quijada
I THE INSTRUCTION ON MANSLAUGHTER BY ACT
With regard to count one involving the victim Michael Longoria Mr
Rangel argues that the lesser-included offense instruction on manslaughter by act was
fundamentally erroneous because it instructed the jury that it could find Mr Rangel
guilty of the lesser-included offense of manslaughter if the State proved that
1 Michael Longoria is dead
2 Francisco Rangel committed an act which was intended to cause the death of Michael Longoria
We find no error fundamental or othenvise because the instruction did
not contain the language Mr Rangel describes Instead paragraph 2 of the instruction
informed the jury that it had to find that Francisco Rangels act(s) caused the death of
Michael Longoria The instruction further informed the jury that [i]n order to convict of
manslaughter by act it is not necessary for the State to prove that the defendant had an
intent to cause death only an intent to commit an act that was not justified or excusable
and which caused death This instruction was not erroneous See State v
Montgomery 39 So 3d 252 259-60 (Fla 2010) ([T]he intent which the State must
prove for 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) We also note that the
written instructions provided to the jury were identical to the oral instructions issued by
the trial judge Accordingly we affirm Mr Rangels judgment and sentence for the
second-degree murder of Michael Longoria
- 3 shy
ll THE INSTRUCTION ON ATTEMPTED MANSLAUGHTER BY ACT
With regard to count two relating to Vidal Quijada the trial court instructed
the jury that to find Mr Rangel guilty of the lesser-included offense of attempted
manslaughter the State was required to prove that Francisco Rangel committed an
act which was intended to cause the death of Vidal Quijada and would have resulted in
the death of Vida Quijada except that someone prevented Francisco Rangel from killing
Vidal Quijada or he failed to do so3 The Supreme Court of Florida has declared that
the issuance of an almost identical instruction constituted fundamental error in Williams
v State 123 So 3d 23 27 (Fla 2013) ([A] trial court commits fundamental error in
giving the standard jury instruction on attempted manslaughter by act where the
defendant is convicted of a crimeno more than one step removed from the improperly
instructed offense) Accordingly we reverse Mr Rangels judgment and sentence for
the attempted murder of Vidal Quijada and remand for a new trial on this count only
111 THE INSTRUCTION ON THE JUSTIFIABLE USE OF DEADLY FORCE
Mr Rangel argues that the jury instruction on justifiable use of deadly
force was fundamentally erroneous The trial courts instruction to the jury on this issue
included the following language
If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be he had no duty to retreat and had the right to stand his ground and meet force with force including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of Attempted Murder or Armed Robbery
(Emphasis added) However section 776013 Florida Statutes (2010) provides
3Again the trial courts oral instruction was identical to the written instruction
- 4 shy
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force includinqmiddotdeadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony
(Emphasis added) Although the standard jury instruction follows the statutory
language it sets off the phrase including deadly force with an additional comma This
court found the use of this language to constitute fundamental error under the
circumstances presented in Talley v State 106 So 3d 1015 (Fla 2d DCA 2013) The
Talley court explained its reasoning as follows
[T]he erroneous comma eliminated Talleys sole defense by suggesting that Talley had no right to defend himself with any force whatsoever unless Mullendore threatened him with deadly force Even if Mullendore attacked Talley with nondeadly force Talley would have the duty to retreat according to this erroneous instruction
at 1017 However the instruction at issue in Talley was Florida Standard Jury
Instruction (Criminal) 36(g) Justifiable Use of Non-Deadly Force which is the
standard self-defense instruction E Talleys only defense was that the alleged victim
John Mullendore had attacked him with nondeadly force and thus Talley was justified in
using nondeadly force in self defense amp at 1016 Accordingly the Talley court held
that the instruction given in that case was erroneous because the justifiable use of
nondeadly force was Talleys only defense and any confusion caused by the instruction
may have deprived Talley of a fair trial because his defense was plausible Jjln at 1018
(emphasis added) The Talley court also noted that the States reliance on the
erroneous instruction in its closing argument supported the conclusion that the error
was fundamental Id at 1017
Although the jury instruction on justifiable use of deadly force Florida
Standard Jury instruction (Criminal) 36(f) also contains the errant comma that caused
the problem in Talley none of the conditions leading to the conclusion that the
instruction was fundamentally erroneous in Talley are present here The first and most
obvious difference is that unlike in Talley Mr Rangel requested and the trial court
instructed the jury on the justifiable use of deadly force not nondeadly force The
facts in this case did not warrant an instruction on nondeadly force because Mr Rangel
unquestionably used deadly force-he shot both victims with a firearm Therefore the
Talley courts concern that the erroneous placement of the comma had the potential to
vitiate Talleys sole defense by causing the jury to think that Talley had no right to
defend himself with any force at all unless he was being threatened with deadly force is
not present here Furthermore because Mr Rangels sole defense was the justifiable
use of deadly force the prosecutors comment in closing that the evidence did not
support a finding that when Mr Rangel fired those shots he was in imminent danger of
death or great bodily harm was a proper comment on the evidence See Merck v
State 975 So 2d 1054 1061 (Fla 2007) (Closing argument is an opportunity for
counsel to review the evidence and to explicate those inferences which may reasonably
be drawn from the evidence)
For these reasons we conclude that even though Florida Jury Instruction
(Criminal) 36(f) contains the same errant comma found in Instruction 36(g) the error in
this instruction is neither fundamental nor harmful where as in this case the
defendants sole defense at trial is the justifiable use of deadly force
IV CONCLUSION
There was no error with respect to the jury instruction on manslaughter or
the jury instruction on justifiable use of deadly force However because the lesser-
included offense of attempted manslaughter was one step removed from the primary
charge upon which the jury found Mr Rangel guilty the instruction on that charge
constituted fundamental error Williams 123 So 3d at 27 Accordingly we reverse Mr
Rangels judgment and sentence on count two of the indictment for the attempted
second-degree murder of Vidal Quijada and remand for a new trial on that count only
In all other respects we affirm Mr Rangels judgments and sentences
Affirmed inpart reversed in part and remanded
ALTENBERND and LaROSE JJ Concur
- 7 shy
STATEMENT OF THE CASE AND FACTS
Petitioner was charged by indictment whereto prior
trial the trial court severed counts one and two
Petitioner was found guilty on count one of the indictment
for second-degree murder Petitioner was also found guilty
by jury on count two of the indictment for attempted
second-degree murder
Petitioner was sentenced to life imprisonment on count
one with a twenty five year minimum mandatory and thirty
years imprisonment on count two with a twenty five year
minimum mandatory Petitioner timely appealed to the Second
District Court of Appeals
On appeal Petitioner argued that the trial court
committed fundamental error in instructing the jury on the
manslaughter and the attempted manslaughter charges as in
State v Montgomery 39 So3d 252 (Fla 2010) As well the
trial court committed further fundamental error in the
instructions on the justifiable use of deadly force as in
Talley v State 106 So3d 1015 (Fla 2d DCA 2013)
On April 3 2013 the Second District Court of Appeal
affirmed per curiam Petitioners judgment without opinion
However on Rehearing the Second District Granted
Rehearing and thereby withdrew the April 3 2013 opinion
and issued a written opinion on December 13 2013 finding
1
fundamental error in the instruction regarding attempted
manslaughter by act On that count Petitioner was granted
a new trial accordingly
However the Second District Court of Appeal found
that no error occurred with respect to the jury
instructions on the justifiable use of deadly force
provided in both the second degree murder count and the
attempted second degree murder count
Particularly the Second District Court concluded that
because Petitioner applied deadly force the issue of non-
deadly force as presented in Talley was not present
This conclusion is in opposition with the drafters
intent in the holding of Talley
2
SUMMARY OF THE ARGUMENT
The sole point presented is whether the holding in
Talley is restricted to defendants who only apply non-
deadly force
JURISDICTIONAL STATEMENT
The Florida Supreme Court has discretionary
jurisdiction to review a decision ofmiddot a district court of
appeal which impute a question of great public importance
3
ARGUMENT
WHETHER TALLEY V STATE 106 SO3D 1015 (FLA 2D DCA 2013) ONLY APPLIES TO DEFENDANTS WHO INFLICT NON-DEADLY FORCE
At bar the defense asserted was that Petitioner-in
self defense-shot two armed men who had tracked him down to
kill him Giving that this was the sole defense asserted
the jury was instructed in the justifiable use of deadly
force sect776013 Fla Stat (2012)
However this instruction erroneously altered the
punctuation which altered its context as in Talley
Nonetheless the Second District concluded that even
if this segment of instructions is the same as the
erroneous instructions given in Talley Petitioner is not
entitled to relief since the force applied in his case was
not disputed ie it was only deadly force applied by
Petitioner This conclusion is misplaced
The Second District is improperly assessing the
drafters intent of sect776013 as being restrained to only
non-deadly force incidents The clear language of the
Statute does not tilt in favor of this erroneous
conclusion
The legislatures intent of sect776013 Fla Stat (2012)
is clearly ascribed to allow individuals to rightfully
4
defend themselves without any restriction to the degree of
force
Petitioner had the Fourteenth Amendment right to
assert this justifiable use of deadly force defense and
further rights to have the jury properly instructed
thereto The facts of Petitioners case compelled
instructing the jury in light of the evidence presented and
his defense proffered
The Second District Court of Appeal has improperly
interpreted its holding of Talley to apply only to
defendants who inflict non-deadly force in regards the
charged offense This interpretation creates a Fourteenth
Amendment due processequal protection concern
Moreover during the prosecutors closing arguments at
bar the prosecutor highlighted that it was the Petitioner
who was the only one that used deadly force This
argument directly highlighted the erroneous instructions
As in Talley this erroneous instruction coupled with
the prosecutors closing arguments has negated Petitioners
sole the defense asserted
In sum giving that Petitioner is protected by the
Fourteenth Amendment due process and equal protection
clause Petitioner urges this Court to consider whether the
5
holding of Talley and sect776013 applies only to individuals
who use non-deadly force
CONCLUSION
This Court has discretionary jurisdiction to review
the decision below and this Court should exercise that
jurisdiction to consider the merits of Petitioners
argument
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing
has been furnished to the Office of the Attorney General at
3507 E Frontage Rd Ste 200 Tampa Florida 33607 by
placing the same in the hands of a Franklin Correctional
Institution Official for mailing on this ]p_ day of March
2014
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this Brief complies with the
font requirements of Rule 9210 (a) (2) of the Florida Rules
of Appellate Procedure
Francisco Rangel DC 133740 Franklin Correctional Institution 1760 Hwy 67 North Carrabelle Florida 32322-2157
6
IN THE SUPREME COURT STATE OF FLORIDA
FRANCISCO RANGEL Petitioner
V CASE NO DCA NO 2D11-835
STATE OF FLORIDA Appellee
APPENDIX
COMES NOW Petitioner FRANCISCO RANGEL pursuant to Fla R
App P Rule 9120 (d) and files this Appendix accompanied
thereto Petitioners Jurisdictional Brief that is being filed
simultaneously
INDEX TO APPENDIX
EXHIBIT A A conformed copy of the decision of the Second
District Court of Appeal
Petitioner
FRANCISCO RANGEL
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been
furnished to the Office of the Attorney General at 3507 E
Frontage Rd Ste 200 Tampa Florida 33607 by placing the same
in the hands of a Franklin Correctional Institution Official
for mailing on this _()_ day of March 2014
Francisco Rangel DC 133740 Franklin Correctional Institution 1760 Hwy 67 North Carrabelle Florida 32322-2157
2
EXHIBIT-A
IN THE SECOND DISTRICT COURT OF APPEAL LAKELAND FLORIDA
December 13 2013
FRANCISCO RANGEL ) )
Appellant ) )
v ) Case No 2D11-835 )
STATE OF FLORIDA ) )
Appellee )
Upon consideration of the Appellants motion for rehearing filed April 15
2013 it is
ORDERED that the Appellants motion for rehearing is granted This
courts opinion dated April 3 2013 is withdrawn and the attached opinion is substituted
therefor
I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER
ES B R LERK 06
NOT FINAL UNTIL TIME EXPlRES TO FILE REHEARING MOTION AND IF FILED DETERMlNED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
FRANCISCO RANGEL ) )
Appellant ) ) _ _
v ) Case No 2D11-835 )
STATE OF FLORIDA ) )
Appellee )
Opinion filed December 13 2013
Appeal from the Circuit Court for Hillsborough County Emmett Lamar Battles Judge
Howard L Dimmig 11 Public Defender and John C Fisher Assistant Public Defender Bartow for Appellant
Pamela Jo Bondi Attorney General Tallahassee and Diana K Bock Assistant Attorney General Tampa for Appellee
WALLACE Judge
Francisco Rangel was charged in the court below in a fourteen-count
indictment The trial court severed counts one and two for trial A jury found Mr Rangel
guilty on count one of the indictment for the second-degree murder of Michael Longoria
while possessing and discharging a firearm The jury also found Mr Rangel guilty on
count two of the indictment for the attempted second-degree murder of Vidal Quijada
while possessing and discharging a firearm The trial court adjudged Mr Rangel to be
guilty of both offenses and sentenced him to life imprisonment on count one with a
twenty-five-year minimum and thirty years in prison on count two with a twenty-five-year
minimum The sentences were designated to run consecutively Mr Rangel has
appealed his judgment and sentences on counts one and two of the indictment
Mr Rangel argues that the trial court committed fundamental error in three
of the instructions given to the jury2 We find merit only in Mr Rangels argument
After Mr Rangel was sentenced on counts one and two he entered negotiated pleas to counts three through fourteen of the indictment The trial court sentenced him to life in prison on six of the counts fifteen years on five of the counts and five years on the remaining counts The trial court imposed minimum mandatory sentences varying between three and twenty-five years on eight of the counts All of the sentences were designated to run consecutively to each other and to the sentences previously imposed on counts one and two The judgment and sentences imposed on counts three through fourteen are not at issue in this appeal
2On April 3 2013 this court affirmed Mr Rangels judgment and sentences imposed on counts one and two of the indictment against him in a per curiam decision without a written opinion In a motion for rehearing Mr Rangels appellate counsel candidly informed this court that he overlooked the jury instruction issues considered herein when he prepared the initial brief Generally we will not consider new arguments made on rehearing that a party has not advanced initially However we exercise our discretion to consider Mr Rangels new arguments on rehearing to avoid middot further appellate filings and to limit the waste of judicial resources If we simply denied Mr Rangels motion for rehearing then a petition for ineffective assistance of appellate counsel would inevitably follow and the clerk would assign another panel to review the matter See Banek v State 75 So 3d 762 765 (Fla 2d DCA 2011 ) (concluding that Baneks appellate counsel rendered ineffective assistance by failing to seek permission to file a supplemental brief on the issue of fundamental error in the attempted manslaughter by act instruction) Pierce v State 121 So 3d 1091 (Fla 5th DCA 2013) (holding that appellate counsel rendered ineffective assistance by failing to argue that it was fundamental error for the trial court to give the standard jun instruction for attempted manslaughter containing the erroneous element that the defendant committed an act with the intent to cause the death of the victim)
- 2 shy
concerning the jury instruction on the lesser-included offense of attempted
manslaughter on count two relating to the victim Vidal Quijada
I THE INSTRUCTION ON MANSLAUGHTER BY ACT
With regard to count one involving the victim Michael Longoria Mr
Rangel argues that the lesser-included offense instruction on manslaughter by act was
fundamentally erroneous because it instructed the jury that it could find Mr Rangel
guilty of the lesser-included offense of manslaughter if the State proved that
1 Michael Longoria is dead
2 Francisco Rangel committed an act which was intended to cause the death of Michael Longoria
We find no error fundamental or othenvise because the instruction did
not contain the language Mr Rangel describes Instead paragraph 2 of the instruction
informed the jury that it had to find that Francisco Rangels act(s) caused the death of
Michael Longoria The instruction further informed the jury that [i]n order to convict of
manslaughter by act it is not necessary for the State to prove that the defendant had an
intent to cause death only an intent to commit an act that was not justified or excusable
and which caused death This instruction was not erroneous See State v
Montgomery 39 So 3d 252 259-60 (Fla 2010) ([T]he intent which the State must
prove for 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) We also note that the
written instructions provided to the jury were identical to the oral instructions issued by
the trial judge Accordingly we affirm Mr Rangels judgment and sentence for the
second-degree murder of Michael Longoria
- 3 shy
ll THE INSTRUCTION ON ATTEMPTED MANSLAUGHTER BY ACT
With regard to count two relating to Vidal Quijada the trial court instructed
the jury that to find Mr Rangel guilty of the lesser-included offense of attempted
manslaughter the State was required to prove that Francisco Rangel committed an
act which was intended to cause the death of Vidal Quijada and would have resulted in
the death of Vida Quijada except that someone prevented Francisco Rangel from killing
Vidal Quijada or he failed to do so3 The Supreme Court of Florida has declared that
the issuance of an almost identical instruction constituted fundamental error in Williams
v State 123 So 3d 23 27 (Fla 2013) ([A] trial court commits fundamental error in
giving the standard jury instruction on attempted manslaughter by act where the
defendant is convicted of a crimeno more than one step removed from the improperly
instructed offense) Accordingly we reverse Mr Rangels judgment and sentence for
the attempted murder of Vidal Quijada and remand for a new trial on this count only
111 THE INSTRUCTION ON THE JUSTIFIABLE USE OF DEADLY FORCE
Mr Rangel argues that the jury instruction on justifiable use of deadly
force was fundamentally erroneous The trial courts instruction to the jury on this issue
included the following language
If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be he had no duty to retreat and had the right to stand his ground and meet force with force including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of Attempted Murder or Armed Robbery
(Emphasis added) However section 776013 Florida Statutes (2010) provides
3Again the trial courts oral instruction was identical to the written instruction
- 4 shy
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force includinqmiddotdeadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony
(Emphasis added) Although the standard jury instruction follows the statutory
language it sets off the phrase including deadly force with an additional comma This
court found the use of this language to constitute fundamental error under the
circumstances presented in Talley v State 106 So 3d 1015 (Fla 2d DCA 2013) The
Talley court explained its reasoning as follows
[T]he erroneous comma eliminated Talleys sole defense by suggesting that Talley had no right to defend himself with any force whatsoever unless Mullendore threatened him with deadly force Even if Mullendore attacked Talley with nondeadly force Talley would have the duty to retreat according to this erroneous instruction
at 1017 However the instruction at issue in Talley was Florida Standard Jury
Instruction (Criminal) 36(g) Justifiable Use of Non-Deadly Force which is the
standard self-defense instruction E Talleys only defense was that the alleged victim
John Mullendore had attacked him with nondeadly force and thus Talley was justified in
using nondeadly force in self defense amp at 1016 Accordingly the Talley court held
that the instruction given in that case was erroneous because the justifiable use of
nondeadly force was Talleys only defense and any confusion caused by the instruction
may have deprived Talley of a fair trial because his defense was plausible Jjln at 1018
(emphasis added) The Talley court also noted that the States reliance on the
erroneous instruction in its closing argument supported the conclusion that the error
was fundamental Id at 1017
Although the jury instruction on justifiable use of deadly force Florida
Standard Jury instruction (Criminal) 36(f) also contains the errant comma that caused
the problem in Talley none of the conditions leading to the conclusion that the
instruction was fundamentally erroneous in Talley are present here The first and most
obvious difference is that unlike in Talley Mr Rangel requested and the trial court
instructed the jury on the justifiable use of deadly force not nondeadly force The
facts in this case did not warrant an instruction on nondeadly force because Mr Rangel
unquestionably used deadly force-he shot both victims with a firearm Therefore the
Talley courts concern that the erroneous placement of the comma had the potential to
vitiate Talleys sole defense by causing the jury to think that Talley had no right to
defend himself with any force at all unless he was being threatened with deadly force is
not present here Furthermore because Mr Rangels sole defense was the justifiable
use of deadly force the prosecutors comment in closing that the evidence did not
support a finding that when Mr Rangel fired those shots he was in imminent danger of
death or great bodily harm was a proper comment on the evidence See Merck v
State 975 So 2d 1054 1061 (Fla 2007) (Closing argument is an opportunity for
counsel to review the evidence and to explicate those inferences which may reasonably
be drawn from the evidence)
For these reasons we conclude that even though Florida Jury Instruction
(Criminal) 36(f) contains the same errant comma found in Instruction 36(g) the error in
this instruction is neither fundamental nor harmful where as in this case the
defendants sole defense at trial is the justifiable use of deadly force
IV CONCLUSION
There was no error with respect to the jury instruction on manslaughter or
the jury instruction on justifiable use of deadly force However because the lesser-
included offense of attempted manslaughter was one step removed from the primary
charge upon which the jury found Mr Rangel guilty the instruction on that charge
constituted fundamental error Williams 123 So 3d at 27 Accordingly we reverse Mr
Rangels judgment and sentence on count two of the indictment for the attempted
second-degree murder of Vidal Quijada and remand for a new trial on that count only
In all other respects we affirm Mr Rangels judgments and sentences
Affirmed inpart reversed in part and remanded
ALTENBERND and LaROSE JJ Concur
- 7 shy
fundamental error in the instruction regarding attempted
manslaughter by act On that count Petitioner was granted
a new trial accordingly
However the Second District Court of Appeal found
that no error occurred with respect to the jury
instructions on the justifiable use of deadly force
provided in both the second degree murder count and the
attempted second degree murder count
Particularly the Second District Court concluded that
because Petitioner applied deadly force the issue of non-
deadly force as presented in Talley was not present
This conclusion is in opposition with the drafters
intent in the holding of Talley
2
SUMMARY OF THE ARGUMENT
The sole point presented is whether the holding in
Talley is restricted to defendants who only apply non-
deadly force
JURISDICTIONAL STATEMENT
The Florida Supreme Court has discretionary
jurisdiction to review a decision ofmiddot a district court of
appeal which impute a question of great public importance
3
ARGUMENT
WHETHER TALLEY V STATE 106 SO3D 1015 (FLA 2D DCA 2013) ONLY APPLIES TO DEFENDANTS WHO INFLICT NON-DEADLY FORCE
At bar the defense asserted was that Petitioner-in
self defense-shot two armed men who had tracked him down to
kill him Giving that this was the sole defense asserted
the jury was instructed in the justifiable use of deadly
force sect776013 Fla Stat (2012)
However this instruction erroneously altered the
punctuation which altered its context as in Talley
Nonetheless the Second District concluded that even
if this segment of instructions is the same as the
erroneous instructions given in Talley Petitioner is not
entitled to relief since the force applied in his case was
not disputed ie it was only deadly force applied by
Petitioner This conclusion is misplaced
The Second District is improperly assessing the
drafters intent of sect776013 as being restrained to only
non-deadly force incidents The clear language of the
Statute does not tilt in favor of this erroneous
conclusion
The legislatures intent of sect776013 Fla Stat (2012)
is clearly ascribed to allow individuals to rightfully
4
defend themselves without any restriction to the degree of
force
Petitioner had the Fourteenth Amendment right to
assert this justifiable use of deadly force defense and
further rights to have the jury properly instructed
thereto The facts of Petitioners case compelled
instructing the jury in light of the evidence presented and
his defense proffered
The Second District Court of Appeal has improperly
interpreted its holding of Talley to apply only to
defendants who inflict non-deadly force in regards the
charged offense This interpretation creates a Fourteenth
Amendment due processequal protection concern
Moreover during the prosecutors closing arguments at
bar the prosecutor highlighted that it was the Petitioner
who was the only one that used deadly force This
argument directly highlighted the erroneous instructions
As in Talley this erroneous instruction coupled with
the prosecutors closing arguments has negated Petitioners
sole the defense asserted
In sum giving that Petitioner is protected by the
Fourteenth Amendment due process and equal protection
clause Petitioner urges this Court to consider whether the
5
holding of Talley and sect776013 applies only to individuals
who use non-deadly force
CONCLUSION
This Court has discretionary jurisdiction to review
the decision below and this Court should exercise that
jurisdiction to consider the merits of Petitioners
argument
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing
has been furnished to the Office of the Attorney General at
3507 E Frontage Rd Ste 200 Tampa Florida 33607 by
placing the same in the hands of a Franklin Correctional
Institution Official for mailing on this ]p_ day of March
2014
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this Brief complies with the
font requirements of Rule 9210 (a) (2) of the Florida Rules
of Appellate Procedure
Francisco Rangel DC 133740 Franklin Correctional Institution 1760 Hwy 67 North Carrabelle Florida 32322-2157
6
IN THE SUPREME COURT STATE OF FLORIDA
FRANCISCO RANGEL Petitioner
V CASE NO DCA NO 2D11-835
STATE OF FLORIDA Appellee
APPENDIX
COMES NOW Petitioner FRANCISCO RANGEL pursuant to Fla R
App P Rule 9120 (d) and files this Appendix accompanied
thereto Petitioners Jurisdictional Brief that is being filed
simultaneously
INDEX TO APPENDIX
EXHIBIT A A conformed copy of the decision of the Second
District Court of Appeal
Petitioner
FRANCISCO RANGEL
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been
furnished to the Office of the Attorney General at 3507 E
Frontage Rd Ste 200 Tampa Florida 33607 by placing the same
in the hands of a Franklin Correctional Institution Official
for mailing on this _()_ day of March 2014
Francisco Rangel DC 133740 Franklin Correctional Institution 1760 Hwy 67 North Carrabelle Florida 32322-2157
2
EXHIBIT-A
IN THE SECOND DISTRICT COURT OF APPEAL LAKELAND FLORIDA
December 13 2013
FRANCISCO RANGEL ) )
Appellant ) )
v ) Case No 2D11-835 )
STATE OF FLORIDA ) )
Appellee )
Upon consideration of the Appellants motion for rehearing filed April 15
2013 it is
ORDERED that the Appellants motion for rehearing is granted This
courts opinion dated April 3 2013 is withdrawn and the attached opinion is substituted
therefor
I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER
ES B R LERK 06
NOT FINAL UNTIL TIME EXPlRES TO FILE REHEARING MOTION AND IF FILED DETERMlNED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
FRANCISCO RANGEL ) )
Appellant ) ) _ _
v ) Case No 2D11-835 )
STATE OF FLORIDA ) )
Appellee )
Opinion filed December 13 2013
Appeal from the Circuit Court for Hillsborough County Emmett Lamar Battles Judge
Howard L Dimmig 11 Public Defender and John C Fisher Assistant Public Defender Bartow for Appellant
Pamela Jo Bondi Attorney General Tallahassee and Diana K Bock Assistant Attorney General Tampa for Appellee
WALLACE Judge
Francisco Rangel was charged in the court below in a fourteen-count
indictment The trial court severed counts one and two for trial A jury found Mr Rangel
guilty on count one of the indictment for the second-degree murder of Michael Longoria
while possessing and discharging a firearm The jury also found Mr Rangel guilty on
count two of the indictment for the attempted second-degree murder of Vidal Quijada
while possessing and discharging a firearm The trial court adjudged Mr Rangel to be
guilty of both offenses and sentenced him to life imprisonment on count one with a
twenty-five-year minimum and thirty years in prison on count two with a twenty-five-year
minimum The sentences were designated to run consecutively Mr Rangel has
appealed his judgment and sentences on counts one and two of the indictment
Mr Rangel argues that the trial court committed fundamental error in three
of the instructions given to the jury2 We find merit only in Mr Rangels argument
After Mr Rangel was sentenced on counts one and two he entered negotiated pleas to counts three through fourteen of the indictment The trial court sentenced him to life in prison on six of the counts fifteen years on five of the counts and five years on the remaining counts The trial court imposed minimum mandatory sentences varying between three and twenty-five years on eight of the counts All of the sentences were designated to run consecutively to each other and to the sentences previously imposed on counts one and two The judgment and sentences imposed on counts three through fourteen are not at issue in this appeal
2On April 3 2013 this court affirmed Mr Rangels judgment and sentences imposed on counts one and two of the indictment against him in a per curiam decision without a written opinion In a motion for rehearing Mr Rangels appellate counsel candidly informed this court that he overlooked the jury instruction issues considered herein when he prepared the initial brief Generally we will not consider new arguments made on rehearing that a party has not advanced initially However we exercise our discretion to consider Mr Rangels new arguments on rehearing to avoid middot further appellate filings and to limit the waste of judicial resources If we simply denied Mr Rangels motion for rehearing then a petition for ineffective assistance of appellate counsel would inevitably follow and the clerk would assign another panel to review the matter See Banek v State 75 So 3d 762 765 (Fla 2d DCA 2011 ) (concluding that Baneks appellate counsel rendered ineffective assistance by failing to seek permission to file a supplemental brief on the issue of fundamental error in the attempted manslaughter by act instruction) Pierce v State 121 So 3d 1091 (Fla 5th DCA 2013) (holding that appellate counsel rendered ineffective assistance by failing to argue that it was fundamental error for the trial court to give the standard jun instruction for attempted manslaughter containing the erroneous element that the defendant committed an act with the intent to cause the death of the victim)
- 2 shy
concerning the jury instruction on the lesser-included offense of attempted
manslaughter on count two relating to the victim Vidal Quijada
I THE INSTRUCTION ON MANSLAUGHTER BY ACT
With regard to count one involving the victim Michael Longoria Mr
Rangel argues that the lesser-included offense instruction on manslaughter by act was
fundamentally erroneous because it instructed the jury that it could find Mr Rangel
guilty of the lesser-included offense of manslaughter if the State proved that
1 Michael Longoria is dead
2 Francisco Rangel committed an act which was intended to cause the death of Michael Longoria
We find no error fundamental or othenvise because the instruction did
not contain the language Mr Rangel describes Instead paragraph 2 of the instruction
informed the jury that it had to find that Francisco Rangels act(s) caused the death of
Michael Longoria The instruction further informed the jury that [i]n order to convict of
manslaughter by act it is not necessary for the State to prove that the defendant had an
intent to cause death only an intent to commit an act that was not justified or excusable
and which caused death This instruction was not erroneous See State v
Montgomery 39 So 3d 252 259-60 (Fla 2010) ([T]he intent which the State must
prove for 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) We also note that the
written instructions provided to the jury were identical to the oral instructions issued by
the trial judge Accordingly we affirm Mr Rangels judgment and sentence for the
second-degree murder of Michael Longoria
- 3 shy
ll THE INSTRUCTION ON ATTEMPTED MANSLAUGHTER BY ACT
With regard to count two relating to Vidal Quijada the trial court instructed
the jury that to find Mr Rangel guilty of the lesser-included offense of attempted
manslaughter the State was required to prove that Francisco Rangel committed an
act which was intended to cause the death of Vidal Quijada and would have resulted in
the death of Vida Quijada except that someone prevented Francisco Rangel from killing
Vidal Quijada or he failed to do so3 The Supreme Court of Florida has declared that
the issuance of an almost identical instruction constituted fundamental error in Williams
v State 123 So 3d 23 27 (Fla 2013) ([A] trial court commits fundamental error in
giving the standard jury instruction on attempted manslaughter by act where the
defendant is convicted of a crimeno more than one step removed from the improperly
instructed offense) Accordingly we reverse Mr Rangels judgment and sentence for
the attempted murder of Vidal Quijada and remand for a new trial on this count only
111 THE INSTRUCTION ON THE JUSTIFIABLE USE OF DEADLY FORCE
Mr Rangel argues that the jury instruction on justifiable use of deadly
force was fundamentally erroneous The trial courts instruction to the jury on this issue
included the following language
If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be he had no duty to retreat and had the right to stand his ground and meet force with force including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of Attempted Murder or Armed Robbery
(Emphasis added) However section 776013 Florida Statutes (2010) provides
3Again the trial courts oral instruction was identical to the written instruction
- 4 shy
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force includinqmiddotdeadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony
(Emphasis added) Although the standard jury instruction follows the statutory
language it sets off the phrase including deadly force with an additional comma This
court found the use of this language to constitute fundamental error under the
circumstances presented in Talley v State 106 So 3d 1015 (Fla 2d DCA 2013) The
Talley court explained its reasoning as follows
[T]he erroneous comma eliminated Talleys sole defense by suggesting that Talley had no right to defend himself with any force whatsoever unless Mullendore threatened him with deadly force Even if Mullendore attacked Talley with nondeadly force Talley would have the duty to retreat according to this erroneous instruction
at 1017 However the instruction at issue in Talley was Florida Standard Jury
Instruction (Criminal) 36(g) Justifiable Use of Non-Deadly Force which is the
standard self-defense instruction E Talleys only defense was that the alleged victim
John Mullendore had attacked him with nondeadly force and thus Talley was justified in
using nondeadly force in self defense amp at 1016 Accordingly the Talley court held
that the instruction given in that case was erroneous because the justifiable use of
nondeadly force was Talleys only defense and any confusion caused by the instruction
may have deprived Talley of a fair trial because his defense was plausible Jjln at 1018
(emphasis added) The Talley court also noted that the States reliance on the
erroneous instruction in its closing argument supported the conclusion that the error
was fundamental Id at 1017
Although the jury instruction on justifiable use of deadly force Florida
Standard Jury instruction (Criminal) 36(f) also contains the errant comma that caused
the problem in Talley none of the conditions leading to the conclusion that the
instruction was fundamentally erroneous in Talley are present here The first and most
obvious difference is that unlike in Talley Mr Rangel requested and the trial court
instructed the jury on the justifiable use of deadly force not nondeadly force The
facts in this case did not warrant an instruction on nondeadly force because Mr Rangel
unquestionably used deadly force-he shot both victims with a firearm Therefore the
Talley courts concern that the erroneous placement of the comma had the potential to
vitiate Talleys sole defense by causing the jury to think that Talley had no right to
defend himself with any force at all unless he was being threatened with deadly force is
not present here Furthermore because Mr Rangels sole defense was the justifiable
use of deadly force the prosecutors comment in closing that the evidence did not
support a finding that when Mr Rangel fired those shots he was in imminent danger of
death or great bodily harm was a proper comment on the evidence See Merck v
State 975 So 2d 1054 1061 (Fla 2007) (Closing argument is an opportunity for
counsel to review the evidence and to explicate those inferences which may reasonably
be drawn from the evidence)
For these reasons we conclude that even though Florida Jury Instruction
(Criminal) 36(f) contains the same errant comma found in Instruction 36(g) the error in
this instruction is neither fundamental nor harmful where as in this case the
defendants sole defense at trial is the justifiable use of deadly force
IV CONCLUSION
There was no error with respect to the jury instruction on manslaughter or
the jury instruction on justifiable use of deadly force However because the lesser-
included offense of attempted manslaughter was one step removed from the primary
charge upon which the jury found Mr Rangel guilty the instruction on that charge
constituted fundamental error Williams 123 So 3d at 27 Accordingly we reverse Mr
Rangels judgment and sentence on count two of the indictment for the attempted
second-degree murder of Vidal Quijada and remand for a new trial on that count only
In all other respects we affirm Mr Rangels judgments and sentences
Affirmed inpart reversed in part and remanded
ALTENBERND and LaROSE JJ Concur
- 7 shy
SUMMARY OF THE ARGUMENT
The sole point presented is whether the holding in
Talley is restricted to defendants who only apply non-
deadly force
JURISDICTIONAL STATEMENT
The Florida Supreme Court has discretionary
jurisdiction to review a decision ofmiddot a district court of
appeal which impute a question of great public importance
3
ARGUMENT
WHETHER TALLEY V STATE 106 SO3D 1015 (FLA 2D DCA 2013) ONLY APPLIES TO DEFENDANTS WHO INFLICT NON-DEADLY FORCE
At bar the defense asserted was that Petitioner-in
self defense-shot two armed men who had tracked him down to
kill him Giving that this was the sole defense asserted
the jury was instructed in the justifiable use of deadly
force sect776013 Fla Stat (2012)
However this instruction erroneously altered the
punctuation which altered its context as in Talley
Nonetheless the Second District concluded that even
if this segment of instructions is the same as the
erroneous instructions given in Talley Petitioner is not
entitled to relief since the force applied in his case was
not disputed ie it was only deadly force applied by
Petitioner This conclusion is misplaced
The Second District is improperly assessing the
drafters intent of sect776013 as being restrained to only
non-deadly force incidents The clear language of the
Statute does not tilt in favor of this erroneous
conclusion
The legislatures intent of sect776013 Fla Stat (2012)
is clearly ascribed to allow individuals to rightfully
4
defend themselves without any restriction to the degree of
force
Petitioner had the Fourteenth Amendment right to
assert this justifiable use of deadly force defense and
further rights to have the jury properly instructed
thereto The facts of Petitioners case compelled
instructing the jury in light of the evidence presented and
his defense proffered
The Second District Court of Appeal has improperly
interpreted its holding of Talley to apply only to
defendants who inflict non-deadly force in regards the
charged offense This interpretation creates a Fourteenth
Amendment due processequal protection concern
Moreover during the prosecutors closing arguments at
bar the prosecutor highlighted that it was the Petitioner
who was the only one that used deadly force This
argument directly highlighted the erroneous instructions
As in Talley this erroneous instruction coupled with
the prosecutors closing arguments has negated Petitioners
sole the defense asserted
In sum giving that Petitioner is protected by the
Fourteenth Amendment due process and equal protection
clause Petitioner urges this Court to consider whether the
5
holding of Talley and sect776013 applies only to individuals
who use non-deadly force
CONCLUSION
This Court has discretionary jurisdiction to review
the decision below and this Court should exercise that
jurisdiction to consider the merits of Petitioners
argument
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing
has been furnished to the Office of the Attorney General at
3507 E Frontage Rd Ste 200 Tampa Florida 33607 by
placing the same in the hands of a Franklin Correctional
Institution Official for mailing on this ]p_ day of March
2014
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this Brief complies with the
font requirements of Rule 9210 (a) (2) of the Florida Rules
of Appellate Procedure
Francisco Rangel DC 133740 Franklin Correctional Institution 1760 Hwy 67 North Carrabelle Florida 32322-2157
6
IN THE SUPREME COURT STATE OF FLORIDA
FRANCISCO RANGEL Petitioner
V CASE NO DCA NO 2D11-835
STATE OF FLORIDA Appellee
APPENDIX
COMES NOW Petitioner FRANCISCO RANGEL pursuant to Fla R
App P Rule 9120 (d) and files this Appendix accompanied
thereto Petitioners Jurisdictional Brief that is being filed
simultaneously
INDEX TO APPENDIX
EXHIBIT A A conformed copy of the decision of the Second
District Court of Appeal
Petitioner
FRANCISCO RANGEL
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been
furnished to the Office of the Attorney General at 3507 E
Frontage Rd Ste 200 Tampa Florida 33607 by placing the same
in the hands of a Franklin Correctional Institution Official
for mailing on this _()_ day of March 2014
Francisco Rangel DC 133740 Franklin Correctional Institution 1760 Hwy 67 North Carrabelle Florida 32322-2157
2
EXHIBIT-A
IN THE SECOND DISTRICT COURT OF APPEAL LAKELAND FLORIDA
December 13 2013
FRANCISCO RANGEL ) )
Appellant ) )
v ) Case No 2D11-835 )
STATE OF FLORIDA ) )
Appellee )
Upon consideration of the Appellants motion for rehearing filed April 15
2013 it is
ORDERED that the Appellants motion for rehearing is granted This
courts opinion dated April 3 2013 is withdrawn and the attached opinion is substituted
therefor
I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER
ES B R LERK 06
NOT FINAL UNTIL TIME EXPlRES TO FILE REHEARING MOTION AND IF FILED DETERMlNED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
FRANCISCO RANGEL ) )
Appellant ) ) _ _
v ) Case No 2D11-835 )
STATE OF FLORIDA ) )
Appellee )
Opinion filed December 13 2013
Appeal from the Circuit Court for Hillsborough County Emmett Lamar Battles Judge
Howard L Dimmig 11 Public Defender and John C Fisher Assistant Public Defender Bartow for Appellant
Pamela Jo Bondi Attorney General Tallahassee and Diana K Bock Assistant Attorney General Tampa for Appellee
WALLACE Judge
Francisco Rangel was charged in the court below in a fourteen-count
indictment The trial court severed counts one and two for trial A jury found Mr Rangel
guilty on count one of the indictment for the second-degree murder of Michael Longoria
while possessing and discharging a firearm The jury also found Mr Rangel guilty on
count two of the indictment for the attempted second-degree murder of Vidal Quijada
while possessing and discharging a firearm The trial court adjudged Mr Rangel to be
guilty of both offenses and sentenced him to life imprisonment on count one with a
twenty-five-year minimum and thirty years in prison on count two with a twenty-five-year
minimum The sentences were designated to run consecutively Mr Rangel has
appealed his judgment and sentences on counts one and two of the indictment
Mr Rangel argues that the trial court committed fundamental error in three
of the instructions given to the jury2 We find merit only in Mr Rangels argument
After Mr Rangel was sentenced on counts one and two he entered negotiated pleas to counts three through fourteen of the indictment The trial court sentenced him to life in prison on six of the counts fifteen years on five of the counts and five years on the remaining counts The trial court imposed minimum mandatory sentences varying between three and twenty-five years on eight of the counts All of the sentences were designated to run consecutively to each other and to the sentences previously imposed on counts one and two The judgment and sentences imposed on counts three through fourteen are not at issue in this appeal
2On April 3 2013 this court affirmed Mr Rangels judgment and sentences imposed on counts one and two of the indictment against him in a per curiam decision without a written opinion In a motion for rehearing Mr Rangels appellate counsel candidly informed this court that he overlooked the jury instruction issues considered herein when he prepared the initial brief Generally we will not consider new arguments made on rehearing that a party has not advanced initially However we exercise our discretion to consider Mr Rangels new arguments on rehearing to avoid middot further appellate filings and to limit the waste of judicial resources If we simply denied Mr Rangels motion for rehearing then a petition for ineffective assistance of appellate counsel would inevitably follow and the clerk would assign another panel to review the matter See Banek v State 75 So 3d 762 765 (Fla 2d DCA 2011 ) (concluding that Baneks appellate counsel rendered ineffective assistance by failing to seek permission to file a supplemental brief on the issue of fundamental error in the attempted manslaughter by act instruction) Pierce v State 121 So 3d 1091 (Fla 5th DCA 2013) (holding that appellate counsel rendered ineffective assistance by failing to argue that it was fundamental error for the trial court to give the standard jun instruction for attempted manslaughter containing the erroneous element that the defendant committed an act with the intent to cause the death of the victim)
- 2 shy
concerning the jury instruction on the lesser-included offense of attempted
manslaughter on count two relating to the victim Vidal Quijada
I THE INSTRUCTION ON MANSLAUGHTER BY ACT
With regard to count one involving the victim Michael Longoria Mr
Rangel argues that the lesser-included offense instruction on manslaughter by act was
fundamentally erroneous because it instructed the jury that it could find Mr Rangel
guilty of the lesser-included offense of manslaughter if the State proved that
1 Michael Longoria is dead
2 Francisco Rangel committed an act which was intended to cause the death of Michael Longoria
We find no error fundamental or othenvise because the instruction did
not contain the language Mr Rangel describes Instead paragraph 2 of the instruction
informed the jury that it had to find that Francisco Rangels act(s) caused the death of
Michael Longoria The instruction further informed the jury that [i]n order to convict of
manslaughter by act it is not necessary for the State to prove that the defendant had an
intent to cause death only an intent to commit an act that was not justified or excusable
and which caused death This instruction was not erroneous See State v
Montgomery 39 So 3d 252 259-60 (Fla 2010) ([T]he intent which the State must
prove for 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) We also note that the
written instructions provided to the jury were identical to the oral instructions issued by
the trial judge Accordingly we affirm Mr Rangels judgment and sentence for the
second-degree murder of Michael Longoria
- 3 shy
ll THE INSTRUCTION ON ATTEMPTED MANSLAUGHTER BY ACT
With regard to count two relating to Vidal Quijada the trial court instructed
the jury that to find Mr Rangel guilty of the lesser-included offense of attempted
manslaughter the State was required to prove that Francisco Rangel committed an
act which was intended to cause the death of Vidal Quijada and would have resulted in
the death of Vida Quijada except that someone prevented Francisco Rangel from killing
Vidal Quijada or he failed to do so3 The Supreme Court of Florida has declared that
the issuance of an almost identical instruction constituted fundamental error in Williams
v State 123 So 3d 23 27 (Fla 2013) ([A] trial court commits fundamental error in
giving the standard jury instruction on attempted manslaughter by act where the
defendant is convicted of a crimeno more than one step removed from the improperly
instructed offense) Accordingly we reverse Mr Rangels judgment and sentence for
the attempted murder of Vidal Quijada and remand for a new trial on this count only
111 THE INSTRUCTION ON THE JUSTIFIABLE USE OF DEADLY FORCE
Mr Rangel argues that the jury instruction on justifiable use of deadly
force was fundamentally erroneous The trial courts instruction to the jury on this issue
included the following language
If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be he had no duty to retreat and had the right to stand his ground and meet force with force including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of Attempted Murder or Armed Robbery
(Emphasis added) However section 776013 Florida Statutes (2010) provides
3Again the trial courts oral instruction was identical to the written instruction
- 4 shy
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force includinqmiddotdeadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony
(Emphasis added) Although the standard jury instruction follows the statutory
language it sets off the phrase including deadly force with an additional comma This
court found the use of this language to constitute fundamental error under the
circumstances presented in Talley v State 106 So 3d 1015 (Fla 2d DCA 2013) The
Talley court explained its reasoning as follows
[T]he erroneous comma eliminated Talleys sole defense by suggesting that Talley had no right to defend himself with any force whatsoever unless Mullendore threatened him with deadly force Even if Mullendore attacked Talley with nondeadly force Talley would have the duty to retreat according to this erroneous instruction
at 1017 However the instruction at issue in Talley was Florida Standard Jury
Instruction (Criminal) 36(g) Justifiable Use of Non-Deadly Force which is the
standard self-defense instruction E Talleys only defense was that the alleged victim
John Mullendore had attacked him with nondeadly force and thus Talley was justified in
using nondeadly force in self defense amp at 1016 Accordingly the Talley court held
that the instruction given in that case was erroneous because the justifiable use of
nondeadly force was Talleys only defense and any confusion caused by the instruction
may have deprived Talley of a fair trial because his defense was plausible Jjln at 1018
(emphasis added) The Talley court also noted that the States reliance on the
erroneous instruction in its closing argument supported the conclusion that the error
was fundamental Id at 1017
Although the jury instruction on justifiable use of deadly force Florida
Standard Jury instruction (Criminal) 36(f) also contains the errant comma that caused
the problem in Talley none of the conditions leading to the conclusion that the
instruction was fundamentally erroneous in Talley are present here The first and most
obvious difference is that unlike in Talley Mr Rangel requested and the trial court
instructed the jury on the justifiable use of deadly force not nondeadly force The
facts in this case did not warrant an instruction on nondeadly force because Mr Rangel
unquestionably used deadly force-he shot both victims with a firearm Therefore the
Talley courts concern that the erroneous placement of the comma had the potential to
vitiate Talleys sole defense by causing the jury to think that Talley had no right to
defend himself with any force at all unless he was being threatened with deadly force is
not present here Furthermore because Mr Rangels sole defense was the justifiable
use of deadly force the prosecutors comment in closing that the evidence did not
support a finding that when Mr Rangel fired those shots he was in imminent danger of
death or great bodily harm was a proper comment on the evidence See Merck v
State 975 So 2d 1054 1061 (Fla 2007) (Closing argument is an opportunity for
counsel to review the evidence and to explicate those inferences which may reasonably
be drawn from the evidence)
For these reasons we conclude that even though Florida Jury Instruction
(Criminal) 36(f) contains the same errant comma found in Instruction 36(g) the error in
this instruction is neither fundamental nor harmful where as in this case the
defendants sole defense at trial is the justifiable use of deadly force
IV CONCLUSION
There was no error with respect to the jury instruction on manslaughter or
the jury instruction on justifiable use of deadly force However because the lesser-
included offense of attempted manslaughter was one step removed from the primary
charge upon which the jury found Mr Rangel guilty the instruction on that charge
constituted fundamental error Williams 123 So 3d at 27 Accordingly we reverse Mr
Rangels judgment and sentence on count two of the indictment for the attempted
second-degree murder of Vidal Quijada and remand for a new trial on that count only
In all other respects we affirm Mr Rangels judgments and sentences
Affirmed inpart reversed in part and remanded
ALTENBERND and LaROSE JJ Concur
- 7 shy
ARGUMENT
WHETHER TALLEY V STATE 106 SO3D 1015 (FLA 2D DCA 2013) ONLY APPLIES TO DEFENDANTS WHO INFLICT NON-DEADLY FORCE
At bar the defense asserted was that Petitioner-in
self defense-shot two armed men who had tracked him down to
kill him Giving that this was the sole defense asserted
the jury was instructed in the justifiable use of deadly
force sect776013 Fla Stat (2012)
However this instruction erroneously altered the
punctuation which altered its context as in Talley
Nonetheless the Second District concluded that even
if this segment of instructions is the same as the
erroneous instructions given in Talley Petitioner is not
entitled to relief since the force applied in his case was
not disputed ie it was only deadly force applied by
Petitioner This conclusion is misplaced
The Second District is improperly assessing the
drafters intent of sect776013 as being restrained to only
non-deadly force incidents The clear language of the
Statute does not tilt in favor of this erroneous
conclusion
The legislatures intent of sect776013 Fla Stat (2012)
is clearly ascribed to allow individuals to rightfully
4
defend themselves without any restriction to the degree of
force
Petitioner had the Fourteenth Amendment right to
assert this justifiable use of deadly force defense and
further rights to have the jury properly instructed
thereto The facts of Petitioners case compelled
instructing the jury in light of the evidence presented and
his defense proffered
The Second District Court of Appeal has improperly
interpreted its holding of Talley to apply only to
defendants who inflict non-deadly force in regards the
charged offense This interpretation creates a Fourteenth
Amendment due processequal protection concern
Moreover during the prosecutors closing arguments at
bar the prosecutor highlighted that it was the Petitioner
who was the only one that used deadly force This
argument directly highlighted the erroneous instructions
As in Talley this erroneous instruction coupled with
the prosecutors closing arguments has negated Petitioners
sole the defense asserted
In sum giving that Petitioner is protected by the
Fourteenth Amendment due process and equal protection
clause Petitioner urges this Court to consider whether the
5
holding of Talley and sect776013 applies only to individuals
who use non-deadly force
CONCLUSION
This Court has discretionary jurisdiction to review
the decision below and this Court should exercise that
jurisdiction to consider the merits of Petitioners
argument
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing
has been furnished to the Office of the Attorney General at
3507 E Frontage Rd Ste 200 Tampa Florida 33607 by
placing the same in the hands of a Franklin Correctional
Institution Official for mailing on this ]p_ day of March
2014
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this Brief complies with the
font requirements of Rule 9210 (a) (2) of the Florida Rules
of Appellate Procedure
Francisco Rangel DC 133740 Franklin Correctional Institution 1760 Hwy 67 North Carrabelle Florida 32322-2157
6
IN THE SUPREME COURT STATE OF FLORIDA
FRANCISCO RANGEL Petitioner
V CASE NO DCA NO 2D11-835
STATE OF FLORIDA Appellee
APPENDIX
COMES NOW Petitioner FRANCISCO RANGEL pursuant to Fla R
App P Rule 9120 (d) and files this Appendix accompanied
thereto Petitioners Jurisdictional Brief that is being filed
simultaneously
INDEX TO APPENDIX
EXHIBIT A A conformed copy of the decision of the Second
District Court of Appeal
Petitioner
FRANCISCO RANGEL
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been
furnished to the Office of the Attorney General at 3507 E
Frontage Rd Ste 200 Tampa Florida 33607 by placing the same
in the hands of a Franklin Correctional Institution Official
for mailing on this _()_ day of March 2014
Francisco Rangel DC 133740 Franklin Correctional Institution 1760 Hwy 67 North Carrabelle Florida 32322-2157
2
EXHIBIT-A
IN THE SECOND DISTRICT COURT OF APPEAL LAKELAND FLORIDA
December 13 2013
FRANCISCO RANGEL ) )
Appellant ) )
v ) Case No 2D11-835 )
STATE OF FLORIDA ) )
Appellee )
Upon consideration of the Appellants motion for rehearing filed April 15
2013 it is
ORDERED that the Appellants motion for rehearing is granted This
courts opinion dated April 3 2013 is withdrawn and the attached opinion is substituted
therefor
I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER
ES B R LERK 06
NOT FINAL UNTIL TIME EXPlRES TO FILE REHEARING MOTION AND IF FILED DETERMlNED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
FRANCISCO RANGEL ) )
Appellant ) ) _ _
v ) Case No 2D11-835 )
STATE OF FLORIDA ) )
Appellee )
Opinion filed December 13 2013
Appeal from the Circuit Court for Hillsborough County Emmett Lamar Battles Judge
Howard L Dimmig 11 Public Defender and John C Fisher Assistant Public Defender Bartow for Appellant
Pamela Jo Bondi Attorney General Tallahassee and Diana K Bock Assistant Attorney General Tampa for Appellee
WALLACE Judge
Francisco Rangel was charged in the court below in a fourteen-count
indictment The trial court severed counts one and two for trial A jury found Mr Rangel
guilty on count one of the indictment for the second-degree murder of Michael Longoria
while possessing and discharging a firearm The jury also found Mr Rangel guilty on
count two of the indictment for the attempted second-degree murder of Vidal Quijada
while possessing and discharging a firearm The trial court adjudged Mr Rangel to be
guilty of both offenses and sentenced him to life imprisonment on count one with a
twenty-five-year minimum and thirty years in prison on count two with a twenty-five-year
minimum The sentences were designated to run consecutively Mr Rangel has
appealed his judgment and sentences on counts one and two of the indictment
Mr Rangel argues that the trial court committed fundamental error in three
of the instructions given to the jury2 We find merit only in Mr Rangels argument
After Mr Rangel was sentenced on counts one and two he entered negotiated pleas to counts three through fourteen of the indictment The trial court sentenced him to life in prison on six of the counts fifteen years on five of the counts and five years on the remaining counts The trial court imposed minimum mandatory sentences varying between three and twenty-five years on eight of the counts All of the sentences were designated to run consecutively to each other and to the sentences previously imposed on counts one and two The judgment and sentences imposed on counts three through fourteen are not at issue in this appeal
2On April 3 2013 this court affirmed Mr Rangels judgment and sentences imposed on counts one and two of the indictment against him in a per curiam decision without a written opinion In a motion for rehearing Mr Rangels appellate counsel candidly informed this court that he overlooked the jury instruction issues considered herein when he prepared the initial brief Generally we will not consider new arguments made on rehearing that a party has not advanced initially However we exercise our discretion to consider Mr Rangels new arguments on rehearing to avoid middot further appellate filings and to limit the waste of judicial resources If we simply denied Mr Rangels motion for rehearing then a petition for ineffective assistance of appellate counsel would inevitably follow and the clerk would assign another panel to review the matter See Banek v State 75 So 3d 762 765 (Fla 2d DCA 2011 ) (concluding that Baneks appellate counsel rendered ineffective assistance by failing to seek permission to file a supplemental brief on the issue of fundamental error in the attempted manslaughter by act instruction) Pierce v State 121 So 3d 1091 (Fla 5th DCA 2013) (holding that appellate counsel rendered ineffective assistance by failing to argue that it was fundamental error for the trial court to give the standard jun instruction for attempted manslaughter containing the erroneous element that the defendant committed an act with the intent to cause the death of the victim)
- 2 shy
concerning the jury instruction on the lesser-included offense of attempted
manslaughter on count two relating to the victim Vidal Quijada
I THE INSTRUCTION ON MANSLAUGHTER BY ACT
With regard to count one involving the victim Michael Longoria Mr
Rangel argues that the lesser-included offense instruction on manslaughter by act was
fundamentally erroneous because it instructed the jury that it could find Mr Rangel
guilty of the lesser-included offense of manslaughter if the State proved that
1 Michael Longoria is dead
2 Francisco Rangel committed an act which was intended to cause the death of Michael Longoria
We find no error fundamental or othenvise because the instruction did
not contain the language Mr Rangel describes Instead paragraph 2 of the instruction
informed the jury that it had to find that Francisco Rangels act(s) caused the death of
Michael Longoria The instruction further informed the jury that [i]n order to convict of
manslaughter by act it is not necessary for the State to prove that the defendant had an
intent to cause death only an intent to commit an act that was not justified or excusable
and which caused death This instruction was not erroneous See State v
Montgomery 39 So 3d 252 259-60 (Fla 2010) ([T]he intent which the State must
prove for 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) We also note that the
written instructions provided to the jury were identical to the oral instructions issued by
the trial judge Accordingly we affirm Mr Rangels judgment and sentence for the
second-degree murder of Michael Longoria
- 3 shy
ll THE INSTRUCTION ON ATTEMPTED MANSLAUGHTER BY ACT
With regard to count two relating to Vidal Quijada the trial court instructed
the jury that to find Mr Rangel guilty of the lesser-included offense of attempted
manslaughter the State was required to prove that Francisco Rangel committed an
act which was intended to cause the death of Vidal Quijada and would have resulted in
the death of Vida Quijada except that someone prevented Francisco Rangel from killing
Vidal Quijada or he failed to do so3 The Supreme Court of Florida has declared that
the issuance of an almost identical instruction constituted fundamental error in Williams
v State 123 So 3d 23 27 (Fla 2013) ([A] trial court commits fundamental error in
giving the standard jury instruction on attempted manslaughter by act where the
defendant is convicted of a crimeno more than one step removed from the improperly
instructed offense) Accordingly we reverse Mr Rangels judgment and sentence for
the attempted murder of Vidal Quijada and remand for a new trial on this count only
111 THE INSTRUCTION ON THE JUSTIFIABLE USE OF DEADLY FORCE
Mr Rangel argues that the jury instruction on justifiable use of deadly
force was fundamentally erroneous The trial courts instruction to the jury on this issue
included the following language
If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be he had no duty to retreat and had the right to stand his ground and meet force with force including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of Attempted Murder or Armed Robbery
(Emphasis added) However section 776013 Florida Statutes (2010) provides
3Again the trial courts oral instruction was identical to the written instruction
- 4 shy
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force includinqmiddotdeadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony
(Emphasis added) Although the standard jury instruction follows the statutory
language it sets off the phrase including deadly force with an additional comma This
court found the use of this language to constitute fundamental error under the
circumstances presented in Talley v State 106 So 3d 1015 (Fla 2d DCA 2013) The
Talley court explained its reasoning as follows
[T]he erroneous comma eliminated Talleys sole defense by suggesting that Talley had no right to defend himself with any force whatsoever unless Mullendore threatened him with deadly force Even if Mullendore attacked Talley with nondeadly force Talley would have the duty to retreat according to this erroneous instruction
at 1017 However the instruction at issue in Talley was Florida Standard Jury
Instruction (Criminal) 36(g) Justifiable Use of Non-Deadly Force which is the
standard self-defense instruction E Talleys only defense was that the alleged victim
John Mullendore had attacked him with nondeadly force and thus Talley was justified in
using nondeadly force in self defense amp at 1016 Accordingly the Talley court held
that the instruction given in that case was erroneous because the justifiable use of
nondeadly force was Talleys only defense and any confusion caused by the instruction
may have deprived Talley of a fair trial because his defense was plausible Jjln at 1018
(emphasis added) The Talley court also noted that the States reliance on the
erroneous instruction in its closing argument supported the conclusion that the error
was fundamental Id at 1017
Although the jury instruction on justifiable use of deadly force Florida
Standard Jury instruction (Criminal) 36(f) also contains the errant comma that caused
the problem in Talley none of the conditions leading to the conclusion that the
instruction was fundamentally erroneous in Talley are present here The first and most
obvious difference is that unlike in Talley Mr Rangel requested and the trial court
instructed the jury on the justifiable use of deadly force not nondeadly force The
facts in this case did not warrant an instruction on nondeadly force because Mr Rangel
unquestionably used deadly force-he shot both victims with a firearm Therefore the
Talley courts concern that the erroneous placement of the comma had the potential to
vitiate Talleys sole defense by causing the jury to think that Talley had no right to
defend himself with any force at all unless he was being threatened with deadly force is
not present here Furthermore because Mr Rangels sole defense was the justifiable
use of deadly force the prosecutors comment in closing that the evidence did not
support a finding that when Mr Rangel fired those shots he was in imminent danger of
death or great bodily harm was a proper comment on the evidence See Merck v
State 975 So 2d 1054 1061 (Fla 2007) (Closing argument is an opportunity for
counsel to review the evidence and to explicate those inferences which may reasonably
be drawn from the evidence)
For these reasons we conclude that even though Florida Jury Instruction
(Criminal) 36(f) contains the same errant comma found in Instruction 36(g) the error in
this instruction is neither fundamental nor harmful where as in this case the
defendants sole defense at trial is the justifiable use of deadly force
IV CONCLUSION
There was no error with respect to the jury instruction on manslaughter or
the jury instruction on justifiable use of deadly force However because the lesser-
included offense of attempted manslaughter was one step removed from the primary
charge upon which the jury found Mr Rangel guilty the instruction on that charge
constituted fundamental error Williams 123 So 3d at 27 Accordingly we reverse Mr
Rangels judgment and sentence on count two of the indictment for the attempted
second-degree murder of Vidal Quijada and remand for a new trial on that count only
In all other respects we affirm Mr Rangels judgments and sentences
Affirmed inpart reversed in part and remanded
ALTENBERND and LaROSE JJ Concur
- 7 shy
defend themselves without any restriction to the degree of
force
Petitioner had the Fourteenth Amendment right to
assert this justifiable use of deadly force defense and
further rights to have the jury properly instructed
thereto The facts of Petitioners case compelled
instructing the jury in light of the evidence presented and
his defense proffered
The Second District Court of Appeal has improperly
interpreted its holding of Talley to apply only to
defendants who inflict non-deadly force in regards the
charged offense This interpretation creates a Fourteenth
Amendment due processequal protection concern
Moreover during the prosecutors closing arguments at
bar the prosecutor highlighted that it was the Petitioner
who was the only one that used deadly force This
argument directly highlighted the erroneous instructions
As in Talley this erroneous instruction coupled with
the prosecutors closing arguments has negated Petitioners
sole the defense asserted
In sum giving that Petitioner is protected by the
Fourteenth Amendment due process and equal protection
clause Petitioner urges this Court to consider whether the
5
holding of Talley and sect776013 applies only to individuals
who use non-deadly force
CONCLUSION
This Court has discretionary jurisdiction to review
the decision below and this Court should exercise that
jurisdiction to consider the merits of Petitioners
argument
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing
has been furnished to the Office of the Attorney General at
3507 E Frontage Rd Ste 200 Tampa Florida 33607 by
placing the same in the hands of a Franklin Correctional
Institution Official for mailing on this ]p_ day of March
2014
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this Brief complies with the
font requirements of Rule 9210 (a) (2) of the Florida Rules
of Appellate Procedure
Francisco Rangel DC 133740 Franklin Correctional Institution 1760 Hwy 67 North Carrabelle Florida 32322-2157
6
IN THE SUPREME COURT STATE OF FLORIDA
FRANCISCO RANGEL Petitioner
V CASE NO DCA NO 2D11-835
STATE OF FLORIDA Appellee
APPENDIX
COMES NOW Petitioner FRANCISCO RANGEL pursuant to Fla R
App P Rule 9120 (d) and files this Appendix accompanied
thereto Petitioners Jurisdictional Brief that is being filed
simultaneously
INDEX TO APPENDIX
EXHIBIT A A conformed copy of the decision of the Second
District Court of Appeal
Petitioner
FRANCISCO RANGEL
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been
furnished to the Office of the Attorney General at 3507 E
Frontage Rd Ste 200 Tampa Florida 33607 by placing the same
in the hands of a Franklin Correctional Institution Official
for mailing on this _()_ day of March 2014
Francisco Rangel DC 133740 Franklin Correctional Institution 1760 Hwy 67 North Carrabelle Florida 32322-2157
2
EXHIBIT-A
IN THE SECOND DISTRICT COURT OF APPEAL LAKELAND FLORIDA
December 13 2013
FRANCISCO RANGEL ) )
Appellant ) )
v ) Case No 2D11-835 )
STATE OF FLORIDA ) )
Appellee )
Upon consideration of the Appellants motion for rehearing filed April 15
2013 it is
ORDERED that the Appellants motion for rehearing is granted This
courts opinion dated April 3 2013 is withdrawn and the attached opinion is substituted
therefor
I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER
ES B R LERK 06
NOT FINAL UNTIL TIME EXPlRES TO FILE REHEARING MOTION AND IF FILED DETERMlNED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
FRANCISCO RANGEL ) )
Appellant ) ) _ _
v ) Case No 2D11-835 )
STATE OF FLORIDA ) )
Appellee )
Opinion filed December 13 2013
Appeal from the Circuit Court for Hillsborough County Emmett Lamar Battles Judge
Howard L Dimmig 11 Public Defender and John C Fisher Assistant Public Defender Bartow for Appellant
Pamela Jo Bondi Attorney General Tallahassee and Diana K Bock Assistant Attorney General Tampa for Appellee
WALLACE Judge
Francisco Rangel was charged in the court below in a fourteen-count
indictment The trial court severed counts one and two for trial A jury found Mr Rangel
guilty on count one of the indictment for the second-degree murder of Michael Longoria
while possessing and discharging a firearm The jury also found Mr Rangel guilty on
count two of the indictment for the attempted second-degree murder of Vidal Quijada
while possessing and discharging a firearm The trial court adjudged Mr Rangel to be
guilty of both offenses and sentenced him to life imprisonment on count one with a
twenty-five-year minimum and thirty years in prison on count two with a twenty-five-year
minimum The sentences were designated to run consecutively Mr Rangel has
appealed his judgment and sentences on counts one and two of the indictment
Mr Rangel argues that the trial court committed fundamental error in three
of the instructions given to the jury2 We find merit only in Mr Rangels argument
After Mr Rangel was sentenced on counts one and two he entered negotiated pleas to counts three through fourteen of the indictment The trial court sentenced him to life in prison on six of the counts fifteen years on five of the counts and five years on the remaining counts The trial court imposed minimum mandatory sentences varying between three and twenty-five years on eight of the counts All of the sentences were designated to run consecutively to each other and to the sentences previously imposed on counts one and two The judgment and sentences imposed on counts three through fourteen are not at issue in this appeal
2On April 3 2013 this court affirmed Mr Rangels judgment and sentences imposed on counts one and two of the indictment against him in a per curiam decision without a written opinion In a motion for rehearing Mr Rangels appellate counsel candidly informed this court that he overlooked the jury instruction issues considered herein when he prepared the initial brief Generally we will not consider new arguments made on rehearing that a party has not advanced initially However we exercise our discretion to consider Mr Rangels new arguments on rehearing to avoid middot further appellate filings and to limit the waste of judicial resources If we simply denied Mr Rangels motion for rehearing then a petition for ineffective assistance of appellate counsel would inevitably follow and the clerk would assign another panel to review the matter See Banek v State 75 So 3d 762 765 (Fla 2d DCA 2011 ) (concluding that Baneks appellate counsel rendered ineffective assistance by failing to seek permission to file a supplemental brief on the issue of fundamental error in the attempted manslaughter by act instruction) Pierce v State 121 So 3d 1091 (Fla 5th DCA 2013) (holding that appellate counsel rendered ineffective assistance by failing to argue that it was fundamental error for the trial court to give the standard jun instruction for attempted manslaughter containing the erroneous element that the defendant committed an act with the intent to cause the death of the victim)
- 2 shy
concerning the jury instruction on the lesser-included offense of attempted
manslaughter on count two relating to the victim Vidal Quijada
I THE INSTRUCTION ON MANSLAUGHTER BY ACT
With regard to count one involving the victim Michael Longoria Mr
Rangel argues that the lesser-included offense instruction on manslaughter by act was
fundamentally erroneous because it instructed the jury that it could find Mr Rangel
guilty of the lesser-included offense of manslaughter if the State proved that
1 Michael Longoria is dead
2 Francisco Rangel committed an act which was intended to cause the death of Michael Longoria
We find no error fundamental or othenvise because the instruction did
not contain the language Mr Rangel describes Instead paragraph 2 of the instruction
informed the jury that it had to find that Francisco Rangels act(s) caused the death of
Michael Longoria The instruction further informed the jury that [i]n order to convict of
manslaughter by act it is not necessary for the State to prove that the defendant had an
intent to cause death only an intent to commit an act that was not justified or excusable
and which caused death This instruction was not erroneous See State v
Montgomery 39 So 3d 252 259-60 (Fla 2010) ([T]he intent which the State must
prove for 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) We also note that the
written instructions provided to the jury were identical to the oral instructions issued by
the trial judge Accordingly we affirm Mr Rangels judgment and sentence for the
second-degree murder of Michael Longoria
- 3 shy
ll THE INSTRUCTION ON ATTEMPTED MANSLAUGHTER BY ACT
With regard to count two relating to Vidal Quijada the trial court instructed
the jury that to find Mr Rangel guilty of the lesser-included offense of attempted
manslaughter the State was required to prove that Francisco Rangel committed an
act which was intended to cause the death of Vidal Quijada and would have resulted in
the death of Vida Quijada except that someone prevented Francisco Rangel from killing
Vidal Quijada or he failed to do so3 The Supreme Court of Florida has declared that
the issuance of an almost identical instruction constituted fundamental error in Williams
v State 123 So 3d 23 27 (Fla 2013) ([A] trial court commits fundamental error in
giving the standard jury instruction on attempted manslaughter by act where the
defendant is convicted of a crimeno more than one step removed from the improperly
instructed offense) Accordingly we reverse Mr Rangels judgment and sentence for
the attempted murder of Vidal Quijada and remand for a new trial on this count only
111 THE INSTRUCTION ON THE JUSTIFIABLE USE OF DEADLY FORCE
Mr Rangel argues that the jury instruction on justifiable use of deadly
force was fundamentally erroneous The trial courts instruction to the jury on this issue
included the following language
If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be he had no duty to retreat and had the right to stand his ground and meet force with force including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of Attempted Murder or Armed Robbery
(Emphasis added) However section 776013 Florida Statutes (2010) provides
3Again the trial courts oral instruction was identical to the written instruction
- 4 shy
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force includinqmiddotdeadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony
(Emphasis added) Although the standard jury instruction follows the statutory
language it sets off the phrase including deadly force with an additional comma This
court found the use of this language to constitute fundamental error under the
circumstances presented in Talley v State 106 So 3d 1015 (Fla 2d DCA 2013) The
Talley court explained its reasoning as follows
[T]he erroneous comma eliminated Talleys sole defense by suggesting that Talley had no right to defend himself with any force whatsoever unless Mullendore threatened him with deadly force Even if Mullendore attacked Talley with nondeadly force Talley would have the duty to retreat according to this erroneous instruction
at 1017 However the instruction at issue in Talley was Florida Standard Jury
Instruction (Criminal) 36(g) Justifiable Use of Non-Deadly Force which is the
standard self-defense instruction E Talleys only defense was that the alleged victim
John Mullendore had attacked him with nondeadly force and thus Talley was justified in
using nondeadly force in self defense amp at 1016 Accordingly the Talley court held
that the instruction given in that case was erroneous because the justifiable use of
nondeadly force was Talleys only defense and any confusion caused by the instruction
may have deprived Talley of a fair trial because his defense was plausible Jjln at 1018
(emphasis added) The Talley court also noted that the States reliance on the
erroneous instruction in its closing argument supported the conclusion that the error
was fundamental Id at 1017
Although the jury instruction on justifiable use of deadly force Florida
Standard Jury instruction (Criminal) 36(f) also contains the errant comma that caused
the problem in Talley none of the conditions leading to the conclusion that the
instruction was fundamentally erroneous in Talley are present here The first and most
obvious difference is that unlike in Talley Mr Rangel requested and the trial court
instructed the jury on the justifiable use of deadly force not nondeadly force The
facts in this case did not warrant an instruction on nondeadly force because Mr Rangel
unquestionably used deadly force-he shot both victims with a firearm Therefore the
Talley courts concern that the erroneous placement of the comma had the potential to
vitiate Talleys sole defense by causing the jury to think that Talley had no right to
defend himself with any force at all unless he was being threatened with deadly force is
not present here Furthermore because Mr Rangels sole defense was the justifiable
use of deadly force the prosecutors comment in closing that the evidence did not
support a finding that when Mr Rangel fired those shots he was in imminent danger of
death or great bodily harm was a proper comment on the evidence See Merck v
State 975 So 2d 1054 1061 (Fla 2007) (Closing argument is an opportunity for
counsel to review the evidence and to explicate those inferences which may reasonably
be drawn from the evidence)
For these reasons we conclude that even though Florida Jury Instruction
(Criminal) 36(f) contains the same errant comma found in Instruction 36(g) the error in
this instruction is neither fundamental nor harmful where as in this case the
defendants sole defense at trial is the justifiable use of deadly force
IV CONCLUSION
There was no error with respect to the jury instruction on manslaughter or
the jury instruction on justifiable use of deadly force However because the lesser-
included offense of attempted manslaughter was one step removed from the primary
charge upon which the jury found Mr Rangel guilty the instruction on that charge
constituted fundamental error Williams 123 So 3d at 27 Accordingly we reverse Mr
Rangels judgment and sentence on count two of the indictment for the attempted
second-degree murder of Vidal Quijada and remand for a new trial on that count only
In all other respects we affirm Mr Rangels judgments and sentences
Affirmed inpart reversed in part and remanded
ALTENBERND and LaROSE JJ Concur
- 7 shy
holding of Talley and sect776013 applies only to individuals
who use non-deadly force
CONCLUSION
This Court has discretionary jurisdiction to review
the decision below and this Court should exercise that
jurisdiction to consider the merits of Petitioners
argument
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing
has been furnished to the Office of the Attorney General at
3507 E Frontage Rd Ste 200 Tampa Florida 33607 by
placing the same in the hands of a Franklin Correctional
Institution Official for mailing on this ]p_ day of March
2014
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this Brief complies with the
font requirements of Rule 9210 (a) (2) of the Florida Rules
of Appellate Procedure
Francisco Rangel DC 133740 Franklin Correctional Institution 1760 Hwy 67 North Carrabelle Florida 32322-2157
6
IN THE SUPREME COURT STATE OF FLORIDA
FRANCISCO RANGEL Petitioner
V CASE NO DCA NO 2D11-835
STATE OF FLORIDA Appellee
APPENDIX
COMES NOW Petitioner FRANCISCO RANGEL pursuant to Fla R
App P Rule 9120 (d) and files this Appendix accompanied
thereto Petitioners Jurisdictional Brief that is being filed
simultaneously
INDEX TO APPENDIX
EXHIBIT A A conformed copy of the decision of the Second
District Court of Appeal
Petitioner
FRANCISCO RANGEL
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been
furnished to the Office of the Attorney General at 3507 E
Frontage Rd Ste 200 Tampa Florida 33607 by placing the same
in the hands of a Franklin Correctional Institution Official
for mailing on this _()_ day of March 2014
Francisco Rangel DC 133740 Franklin Correctional Institution 1760 Hwy 67 North Carrabelle Florida 32322-2157
2
EXHIBIT-A
IN THE SECOND DISTRICT COURT OF APPEAL LAKELAND FLORIDA
December 13 2013
FRANCISCO RANGEL ) )
Appellant ) )
v ) Case No 2D11-835 )
STATE OF FLORIDA ) )
Appellee )
Upon consideration of the Appellants motion for rehearing filed April 15
2013 it is
ORDERED that the Appellants motion for rehearing is granted This
courts opinion dated April 3 2013 is withdrawn and the attached opinion is substituted
therefor
I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER
ES B R LERK 06
NOT FINAL UNTIL TIME EXPlRES TO FILE REHEARING MOTION AND IF FILED DETERMlNED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
FRANCISCO RANGEL ) )
Appellant ) ) _ _
v ) Case No 2D11-835 )
STATE OF FLORIDA ) )
Appellee )
Opinion filed December 13 2013
Appeal from the Circuit Court for Hillsborough County Emmett Lamar Battles Judge
Howard L Dimmig 11 Public Defender and John C Fisher Assistant Public Defender Bartow for Appellant
Pamela Jo Bondi Attorney General Tallahassee and Diana K Bock Assistant Attorney General Tampa for Appellee
WALLACE Judge
Francisco Rangel was charged in the court below in a fourteen-count
indictment The trial court severed counts one and two for trial A jury found Mr Rangel
guilty on count one of the indictment for the second-degree murder of Michael Longoria
while possessing and discharging a firearm The jury also found Mr Rangel guilty on
count two of the indictment for the attempted second-degree murder of Vidal Quijada
while possessing and discharging a firearm The trial court adjudged Mr Rangel to be
guilty of both offenses and sentenced him to life imprisonment on count one with a
twenty-five-year minimum and thirty years in prison on count two with a twenty-five-year
minimum The sentences were designated to run consecutively Mr Rangel has
appealed his judgment and sentences on counts one and two of the indictment
Mr Rangel argues that the trial court committed fundamental error in three
of the instructions given to the jury2 We find merit only in Mr Rangels argument
After Mr Rangel was sentenced on counts one and two he entered negotiated pleas to counts three through fourteen of the indictment The trial court sentenced him to life in prison on six of the counts fifteen years on five of the counts and five years on the remaining counts The trial court imposed minimum mandatory sentences varying between three and twenty-five years on eight of the counts All of the sentences were designated to run consecutively to each other and to the sentences previously imposed on counts one and two The judgment and sentences imposed on counts three through fourteen are not at issue in this appeal
2On April 3 2013 this court affirmed Mr Rangels judgment and sentences imposed on counts one and two of the indictment against him in a per curiam decision without a written opinion In a motion for rehearing Mr Rangels appellate counsel candidly informed this court that he overlooked the jury instruction issues considered herein when he prepared the initial brief Generally we will not consider new arguments made on rehearing that a party has not advanced initially However we exercise our discretion to consider Mr Rangels new arguments on rehearing to avoid middot further appellate filings and to limit the waste of judicial resources If we simply denied Mr Rangels motion for rehearing then a petition for ineffective assistance of appellate counsel would inevitably follow and the clerk would assign another panel to review the matter See Banek v State 75 So 3d 762 765 (Fla 2d DCA 2011 ) (concluding that Baneks appellate counsel rendered ineffective assistance by failing to seek permission to file a supplemental brief on the issue of fundamental error in the attempted manslaughter by act instruction) Pierce v State 121 So 3d 1091 (Fla 5th DCA 2013) (holding that appellate counsel rendered ineffective assistance by failing to argue that it was fundamental error for the trial court to give the standard jun instruction for attempted manslaughter containing the erroneous element that the defendant committed an act with the intent to cause the death of the victim)
- 2 shy
concerning the jury instruction on the lesser-included offense of attempted
manslaughter on count two relating to the victim Vidal Quijada
I THE INSTRUCTION ON MANSLAUGHTER BY ACT
With regard to count one involving the victim Michael Longoria Mr
Rangel argues that the lesser-included offense instruction on manslaughter by act was
fundamentally erroneous because it instructed the jury that it could find Mr Rangel
guilty of the lesser-included offense of manslaughter if the State proved that
1 Michael Longoria is dead
2 Francisco Rangel committed an act which was intended to cause the death of Michael Longoria
We find no error fundamental or othenvise because the instruction did
not contain the language Mr Rangel describes Instead paragraph 2 of the instruction
informed the jury that it had to find that Francisco Rangels act(s) caused the death of
Michael Longoria The instruction further informed the jury that [i]n order to convict of
manslaughter by act it is not necessary for the State to prove that the defendant had an
intent to cause death only an intent to commit an act that was not justified or excusable
and which caused death This instruction was not erroneous See State v
Montgomery 39 So 3d 252 259-60 (Fla 2010) ([T]he intent which the State must
prove for 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) We also note that the
written instructions provided to the jury were identical to the oral instructions issued by
the trial judge Accordingly we affirm Mr Rangels judgment and sentence for the
second-degree murder of Michael Longoria
- 3 shy
ll THE INSTRUCTION ON ATTEMPTED MANSLAUGHTER BY ACT
With regard to count two relating to Vidal Quijada the trial court instructed
the jury that to find Mr Rangel guilty of the lesser-included offense of attempted
manslaughter the State was required to prove that Francisco Rangel committed an
act which was intended to cause the death of Vidal Quijada and would have resulted in
the death of Vida Quijada except that someone prevented Francisco Rangel from killing
Vidal Quijada or he failed to do so3 The Supreme Court of Florida has declared that
the issuance of an almost identical instruction constituted fundamental error in Williams
v State 123 So 3d 23 27 (Fla 2013) ([A] trial court commits fundamental error in
giving the standard jury instruction on attempted manslaughter by act where the
defendant is convicted of a crimeno more than one step removed from the improperly
instructed offense) Accordingly we reverse Mr Rangels judgment and sentence for
the attempted murder of Vidal Quijada and remand for a new trial on this count only
111 THE INSTRUCTION ON THE JUSTIFIABLE USE OF DEADLY FORCE
Mr Rangel argues that the jury instruction on justifiable use of deadly
force was fundamentally erroneous The trial courts instruction to the jury on this issue
included the following language
If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be he had no duty to retreat and had the right to stand his ground and meet force with force including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of Attempted Murder or Armed Robbery
(Emphasis added) However section 776013 Florida Statutes (2010) provides
3Again the trial courts oral instruction was identical to the written instruction
- 4 shy
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force includinqmiddotdeadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony
(Emphasis added) Although the standard jury instruction follows the statutory
language it sets off the phrase including deadly force with an additional comma This
court found the use of this language to constitute fundamental error under the
circumstances presented in Talley v State 106 So 3d 1015 (Fla 2d DCA 2013) The
Talley court explained its reasoning as follows
[T]he erroneous comma eliminated Talleys sole defense by suggesting that Talley had no right to defend himself with any force whatsoever unless Mullendore threatened him with deadly force Even if Mullendore attacked Talley with nondeadly force Talley would have the duty to retreat according to this erroneous instruction
at 1017 However the instruction at issue in Talley was Florida Standard Jury
Instruction (Criminal) 36(g) Justifiable Use of Non-Deadly Force which is the
standard self-defense instruction E Talleys only defense was that the alleged victim
John Mullendore had attacked him with nondeadly force and thus Talley was justified in
using nondeadly force in self defense amp at 1016 Accordingly the Talley court held
that the instruction given in that case was erroneous because the justifiable use of
nondeadly force was Talleys only defense and any confusion caused by the instruction
may have deprived Talley of a fair trial because his defense was plausible Jjln at 1018
(emphasis added) The Talley court also noted that the States reliance on the
erroneous instruction in its closing argument supported the conclusion that the error
was fundamental Id at 1017
Although the jury instruction on justifiable use of deadly force Florida
Standard Jury instruction (Criminal) 36(f) also contains the errant comma that caused
the problem in Talley none of the conditions leading to the conclusion that the
instruction was fundamentally erroneous in Talley are present here The first and most
obvious difference is that unlike in Talley Mr Rangel requested and the trial court
instructed the jury on the justifiable use of deadly force not nondeadly force The
facts in this case did not warrant an instruction on nondeadly force because Mr Rangel
unquestionably used deadly force-he shot both victims with a firearm Therefore the
Talley courts concern that the erroneous placement of the comma had the potential to
vitiate Talleys sole defense by causing the jury to think that Talley had no right to
defend himself with any force at all unless he was being threatened with deadly force is
not present here Furthermore because Mr Rangels sole defense was the justifiable
use of deadly force the prosecutors comment in closing that the evidence did not
support a finding that when Mr Rangel fired those shots he was in imminent danger of
death or great bodily harm was a proper comment on the evidence See Merck v
State 975 So 2d 1054 1061 (Fla 2007) (Closing argument is an opportunity for
counsel to review the evidence and to explicate those inferences which may reasonably
be drawn from the evidence)
For these reasons we conclude that even though Florida Jury Instruction
(Criminal) 36(f) contains the same errant comma found in Instruction 36(g) the error in
this instruction is neither fundamental nor harmful where as in this case the
defendants sole defense at trial is the justifiable use of deadly force
IV CONCLUSION
There was no error with respect to the jury instruction on manslaughter or
the jury instruction on justifiable use of deadly force However because the lesser-
included offense of attempted manslaughter was one step removed from the primary
charge upon which the jury found Mr Rangel guilty the instruction on that charge
constituted fundamental error Williams 123 So 3d at 27 Accordingly we reverse Mr
Rangels judgment and sentence on count two of the indictment for the attempted
second-degree murder of Vidal Quijada and remand for a new trial on that count only
In all other respects we affirm Mr Rangels judgments and sentences
Affirmed inpart reversed in part and remanded
ALTENBERND and LaROSE JJ Concur
- 7 shy
IN THE SUPREME COURT STATE OF FLORIDA
FRANCISCO RANGEL Petitioner
V CASE NO DCA NO 2D11-835
STATE OF FLORIDA Appellee
APPENDIX
COMES NOW Petitioner FRANCISCO RANGEL pursuant to Fla R
App P Rule 9120 (d) and files this Appendix accompanied
thereto Petitioners Jurisdictional Brief that is being filed
simultaneously
INDEX TO APPENDIX
EXHIBIT A A conformed copy of the decision of the Second
District Court of Appeal
Petitioner
FRANCISCO RANGEL
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been
furnished to the Office of the Attorney General at 3507 E
Frontage Rd Ste 200 Tampa Florida 33607 by placing the same
in the hands of a Franklin Correctional Institution Official
for mailing on this _()_ day of March 2014
Francisco Rangel DC 133740 Franklin Correctional Institution 1760 Hwy 67 North Carrabelle Florida 32322-2157
2
EXHIBIT-A
IN THE SECOND DISTRICT COURT OF APPEAL LAKELAND FLORIDA
December 13 2013
FRANCISCO RANGEL ) )
Appellant ) )
v ) Case No 2D11-835 )
STATE OF FLORIDA ) )
Appellee )
Upon consideration of the Appellants motion for rehearing filed April 15
2013 it is
ORDERED that the Appellants motion for rehearing is granted This
courts opinion dated April 3 2013 is withdrawn and the attached opinion is substituted
therefor
I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER
ES B R LERK 06
NOT FINAL UNTIL TIME EXPlRES TO FILE REHEARING MOTION AND IF FILED DETERMlNED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
FRANCISCO RANGEL ) )
Appellant ) ) _ _
v ) Case No 2D11-835 )
STATE OF FLORIDA ) )
Appellee )
Opinion filed December 13 2013
Appeal from the Circuit Court for Hillsborough County Emmett Lamar Battles Judge
Howard L Dimmig 11 Public Defender and John C Fisher Assistant Public Defender Bartow for Appellant
Pamela Jo Bondi Attorney General Tallahassee and Diana K Bock Assistant Attorney General Tampa for Appellee
WALLACE Judge
Francisco Rangel was charged in the court below in a fourteen-count
indictment The trial court severed counts one and two for trial A jury found Mr Rangel
guilty on count one of the indictment for the second-degree murder of Michael Longoria
while possessing and discharging a firearm The jury also found Mr Rangel guilty on
count two of the indictment for the attempted second-degree murder of Vidal Quijada
while possessing and discharging a firearm The trial court adjudged Mr Rangel to be
guilty of both offenses and sentenced him to life imprisonment on count one with a
twenty-five-year minimum and thirty years in prison on count two with a twenty-five-year
minimum The sentences were designated to run consecutively Mr Rangel has
appealed his judgment and sentences on counts one and two of the indictment
Mr Rangel argues that the trial court committed fundamental error in three
of the instructions given to the jury2 We find merit only in Mr Rangels argument
After Mr Rangel was sentenced on counts one and two he entered negotiated pleas to counts three through fourteen of the indictment The trial court sentenced him to life in prison on six of the counts fifteen years on five of the counts and five years on the remaining counts The trial court imposed minimum mandatory sentences varying between three and twenty-five years on eight of the counts All of the sentences were designated to run consecutively to each other and to the sentences previously imposed on counts one and two The judgment and sentences imposed on counts three through fourteen are not at issue in this appeal
2On April 3 2013 this court affirmed Mr Rangels judgment and sentences imposed on counts one and two of the indictment against him in a per curiam decision without a written opinion In a motion for rehearing Mr Rangels appellate counsel candidly informed this court that he overlooked the jury instruction issues considered herein when he prepared the initial brief Generally we will not consider new arguments made on rehearing that a party has not advanced initially However we exercise our discretion to consider Mr Rangels new arguments on rehearing to avoid middot further appellate filings and to limit the waste of judicial resources If we simply denied Mr Rangels motion for rehearing then a petition for ineffective assistance of appellate counsel would inevitably follow and the clerk would assign another panel to review the matter See Banek v State 75 So 3d 762 765 (Fla 2d DCA 2011 ) (concluding that Baneks appellate counsel rendered ineffective assistance by failing to seek permission to file a supplemental brief on the issue of fundamental error in the attempted manslaughter by act instruction) Pierce v State 121 So 3d 1091 (Fla 5th DCA 2013) (holding that appellate counsel rendered ineffective assistance by failing to argue that it was fundamental error for the trial court to give the standard jun instruction for attempted manslaughter containing the erroneous element that the defendant committed an act with the intent to cause the death of the victim)
- 2 shy
concerning the jury instruction on the lesser-included offense of attempted
manslaughter on count two relating to the victim Vidal Quijada
I THE INSTRUCTION ON MANSLAUGHTER BY ACT
With regard to count one involving the victim Michael Longoria Mr
Rangel argues that the lesser-included offense instruction on manslaughter by act was
fundamentally erroneous because it instructed the jury that it could find Mr Rangel
guilty of the lesser-included offense of manslaughter if the State proved that
1 Michael Longoria is dead
2 Francisco Rangel committed an act which was intended to cause the death of Michael Longoria
We find no error fundamental or othenvise because the instruction did
not contain the language Mr Rangel describes Instead paragraph 2 of the instruction
informed the jury that it had to find that Francisco Rangels act(s) caused the death of
Michael Longoria The instruction further informed the jury that [i]n order to convict of
manslaughter by act it is not necessary for the State to prove that the defendant had an
intent to cause death only an intent to commit an act that was not justified or excusable
and which caused death This instruction was not erroneous See State v
Montgomery 39 So 3d 252 259-60 (Fla 2010) ([T]he intent which the State must
prove for 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) We also note that the
written instructions provided to the jury were identical to the oral instructions issued by
the trial judge Accordingly we affirm Mr Rangels judgment and sentence for the
second-degree murder of Michael Longoria
- 3 shy
ll THE INSTRUCTION ON ATTEMPTED MANSLAUGHTER BY ACT
With regard to count two relating to Vidal Quijada the trial court instructed
the jury that to find Mr Rangel guilty of the lesser-included offense of attempted
manslaughter the State was required to prove that Francisco Rangel committed an
act which was intended to cause the death of Vidal Quijada and would have resulted in
the death of Vida Quijada except that someone prevented Francisco Rangel from killing
Vidal Quijada or he failed to do so3 The Supreme Court of Florida has declared that
the issuance of an almost identical instruction constituted fundamental error in Williams
v State 123 So 3d 23 27 (Fla 2013) ([A] trial court commits fundamental error in
giving the standard jury instruction on attempted manslaughter by act where the
defendant is convicted of a crimeno more than one step removed from the improperly
instructed offense) Accordingly we reverse Mr Rangels judgment and sentence for
the attempted murder of Vidal Quijada and remand for a new trial on this count only
111 THE INSTRUCTION ON THE JUSTIFIABLE USE OF DEADLY FORCE
Mr Rangel argues that the jury instruction on justifiable use of deadly
force was fundamentally erroneous The trial courts instruction to the jury on this issue
included the following language
If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be he had no duty to retreat and had the right to stand his ground and meet force with force including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of Attempted Murder or Armed Robbery
(Emphasis added) However section 776013 Florida Statutes (2010) provides
3Again the trial courts oral instruction was identical to the written instruction
- 4 shy
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force includinqmiddotdeadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony
(Emphasis added) Although the standard jury instruction follows the statutory
language it sets off the phrase including deadly force with an additional comma This
court found the use of this language to constitute fundamental error under the
circumstances presented in Talley v State 106 So 3d 1015 (Fla 2d DCA 2013) The
Talley court explained its reasoning as follows
[T]he erroneous comma eliminated Talleys sole defense by suggesting that Talley had no right to defend himself with any force whatsoever unless Mullendore threatened him with deadly force Even if Mullendore attacked Talley with nondeadly force Talley would have the duty to retreat according to this erroneous instruction
at 1017 However the instruction at issue in Talley was Florida Standard Jury
Instruction (Criminal) 36(g) Justifiable Use of Non-Deadly Force which is the
standard self-defense instruction E Talleys only defense was that the alleged victim
John Mullendore had attacked him with nondeadly force and thus Talley was justified in
using nondeadly force in self defense amp at 1016 Accordingly the Talley court held
that the instruction given in that case was erroneous because the justifiable use of
nondeadly force was Talleys only defense and any confusion caused by the instruction
may have deprived Talley of a fair trial because his defense was plausible Jjln at 1018
(emphasis added) The Talley court also noted that the States reliance on the
erroneous instruction in its closing argument supported the conclusion that the error
was fundamental Id at 1017
Although the jury instruction on justifiable use of deadly force Florida
Standard Jury instruction (Criminal) 36(f) also contains the errant comma that caused
the problem in Talley none of the conditions leading to the conclusion that the
instruction was fundamentally erroneous in Talley are present here The first and most
obvious difference is that unlike in Talley Mr Rangel requested and the trial court
instructed the jury on the justifiable use of deadly force not nondeadly force The
facts in this case did not warrant an instruction on nondeadly force because Mr Rangel
unquestionably used deadly force-he shot both victims with a firearm Therefore the
Talley courts concern that the erroneous placement of the comma had the potential to
vitiate Talleys sole defense by causing the jury to think that Talley had no right to
defend himself with any force at all unless he was being threatened with deadly force is
not present here Furthermore because Mr Rangels sole defense was the justifiable
use of deadly force the prosecutors comment in closing that the evidence did not
support a finding that when Mr Rangel fired those shots he was in imminent danger of
death or great bodily harm was a proper comment on the evidence See Merck v
State 975 So 2d 1054 1061 (Fla 2007) (Closing argument is an opportunity for
counsel to review the evidence and to explicate those inferences which may reasonably
be drawn from the evidence)
For these reasons we conclude that even though Florida Jury Instruction
(Criminal) 36(f) contains the same errant comma found in Instruction 36(g) the error in
this instruction is neither fundamental nor harmful where as in this case the
defendants sole defense at trial is the justifiable use of deadly force
IV CONCLUSION
There was no error with respect to the jury instruction on manslaughter or
the jury instruction on justifiable use of deadly force However because the lesser-
included offense of attempted manslaughter was one step removed from the primary
charge upon which the jury found Mr Rangel guilty the instruction on that charge
constituted fundamental error Williams 123 So 3d at 27 Accordingly we reverse Mr
Rangels judgment and sentence on count two of the indictment for the attempted
second-degree murder of Vidal Quijada and remand for a new trial on that count only
In all other respects we affirm Mr Rangels judgments and sentences
Affirmed inpart reversed in part and remanded
ALTENBERND and LaROSE JJ Concur
- 7 shy
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been
furnished to the Office of the Attorney General at 3507 E
Frontage Rd Ste 200 Tampa Florida 33607 by placing the same
in the hands of a Franklin Correctional Institution Official
for mailing on this _()_ day of March 2014
Francisco Rangel DC 133740 Franklin Correctional Institution 1760 Hwy 67 North Carrabelle Florida 32322-2157
2
EXHIBIT-A
IN THE SECOND DISTRICT COURT OF APPEAL LAKELAND FLORIDA
December 13 2013
FRANCISCO RANGEL ) )
Appellant ) )
v ) Case No 2D11-835 )
STATE OF FLORIDA ) )
Appellee )
Upon consideration of the Appellants motion for rehearing filed April 15
2013 it is
ORDERED that the Appellants motion for rehearing is granted This
courts opinion dated April 3 2013 is withdrawn and the attached opinion is substituted
therefor
I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER
ES B R LERK 06
NOT FINAL UNTIL TIME EXPlRES TO FILE REHEARING MOTION AND IF FILED DETERMlNED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
FRANCISCO RANGEL ) )
Appellant ) ) _ _
v ) Case No 2D11-835 )
STATE OF FLORIDA ) )
Appellee )
Opinion filed December 13 2013
Appeal from the Circuit Court for Hillsborough County Emmett Lamar Battles Judge
Howard L Dimmig 11 Public Defender and John C Fisher Assistant Public Defender Bartow for Appellant
Pamela Jo Bondi Attorney General Tallahassee and Diana K Bock Assistant Attorney General Tampa for Appellee
WALLACE Judge
Francisco Rangel was charged in the court below in a fourteen-count
indictment The trial court severed counts one and two for trial A jury found Mr Rangel
guilty on count one of the indictment for the second-degree murder of Michael Longoria
while possessing and discharging a firearm The jury also found Mr Rangel guilty on
count two of the indictment for the attempted second-degree murder of Vidal Quijada
while possessing and discharging a firearm The trial court adjudged Mr Rangel to be
guilty of both offenses and sentenced him to life imprisonment on count one with a
twenty-five-year minimum and thirty years in prison on count two with a twenty-five-year
minimum The sentences were designated to run consecutively Mr Rangel has
appealed his judgment and sentences on counts one and two of the indictment
Mr Rangel argues that the trial court committed fundamental error in three
of the instructions given to the jury2 We find merit only in Mr Rangels argument
After Mr Rangel was sentenced on counts one and two he entered negotiated pleas to counts three through fourteen of the indictment The trial court sentenced him to life in prison on six of the counts fifteen years on five of the counts and five years on the remaining counts The trial court imposed minimum mandatory sentences varying between three and twenty-five years on eight of the counts All of the sentences were designated to run consecutively to each other and to the sentences previously imposed on counts one and two The judgment and sentences imposed on counts three through fourteen are not at issue in this appeal
2On April 3 2013 this court affirmed Mr Rangels judgment and sentences imposed on counts one and two of the indictment against him in a per curiam decision without a written opinion In a motion for rehearing Mr Rangels appellate counsel candidly informed this court that he overlooked the jury instruction issues considered herein when he prepared the initial brief Generally we will not consider new arguments made on rehearing that a party has not advanced initially However we exercise our discretion to consider Mr Rangels new arguments on rehearing to avoid middot further appellate filings and to limit the waste of judicial resources If we simply denied Mr Rangels motion for rehearing then a petition for ineffective assistance of appellate counsel would inevitably follow and the clerk would assign another panel to review the matter See Banek v State 75 So 3d 762 765 (Fla 2d DCA 2011 ) (concluding that Baneks appellate counsel rendered ineffective assistance by failing to seek permission to file a supplemental brief on the issue of fundamental error in the attempted manslaughter by act instruction) Pierce v State 121 So 3d 1091 (Fla 5th DCA 2013) (holding that appellate counsel rendered ineffective assistance by failing to argue that it was fundamental error for the trial court to give the standard jun instruction for attempted manslaughter containing the erroneous element that the defendant committed an act with the intent to cause the death of the victim)
- 2 shy
concerning the jury instruction on the lesser-included offense of attempted
manslaughter on count two relating to the victim Vidal Quijada
I THE INSTRUCTION ON MANSLAUGHTER BY ACT
With regard to count one involving the victim Michael Longoria Mr
Rangel argues that the lesser-included offense instruction on manslaughter by act was
fundamentally erroneous because it instructed the jury that it could find Mr Rangel
guilty of the lesser-included offense of manslaughter if the State proved that
1 Michael Longoria is dead
2 Francisco Rangel committed an act which was intended to cause the death of Michael Longoria
We find no error fundamental or othenvise because the instruction did
not contain the language Mr Rangel describes Instead paragraph 2 of the instruction
informed the jury that it had to find that Francisco Rangels act(s) caused the death of
Michael Longoria The instruction further informed the jury that [i]n order to convict of
manslaughter by act it is not necessary for the State to prove that the defendant had an
intent to cause death only an intent to commit an act that was not justified or excusable
and which caused death This instruction was not erroneous See State v
Montgomery 39 So 3d 252 259-60 (Fla 2010) ([T]he intent which the State must
prove for 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) We also note that the
written instructions provided to the jury were identical to the oral instructions issued by
the trial judge Accordingly we affirm Mr Rangels judgment and sentence for the
second-degree murder of Michael Longoria
- 3 shy
ll THE INSTRUCTION ON ATTEMPTED MANSLAUGHTER BY ACT
With regard to count two relating to Vidal Quijada the trial court instructed
the jury that to find Mr Rangel guilty of the lesser-included offense of attempted
manslaughter the State was required to prove that Francisco Rangel committed an
act which was intended to cause the death of Vidal Quijada and would have resulted in
the death of Vida Quijada except that someone prevented Francisco Rangel from killing
Vidal Quijada or he failed to do so3 The Supreme Court of Florida has declared that
the issuance of an almost identical instruction constituted fundamental error in Williams
v State 123 So 3d 23 27 (Fla 2013) ([A] trial court commits fundamental error in
giving the standard jury instruction on attempted manslaughter by act where the
defendant is convicted of a crimeno more than one step removed from the improperly
instructed offense) Accordingly we reverse Mr Rangels judgment and sentence for
the attempted murder of Vidal Quijada and remand for a new trial on this count only
111 THE INSTRUCTION ON THE JUSTIFIABLE USE OF DEADLY FORCE
Mr Rangel argues that the jury instruction on justifiable use of deadly
force was fundamentally erroneous The trial courts instruction to the jury on this issue
included the following language
If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be he had no duty to retreat and had the right to stand his ground and meet force with force including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of Attempted Murder or Armed Robbery
(Emphasis added) However section 776013 Florida Statutes (2010) provides
3Again the trial courts oral instruction was identical to the written instruction
- 4 shy
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force includinqmiddotdeadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony
(Emphasis added) Although the standard jury instruction follows the statutory
language it sets off the phrase including deadly force with an additional comma This
court found the use of this language to constitute fundamental error under the
circumstances presented in Talley v State 106 So 3d 1015 (Fla 2d DCA 2013) The
Talley court explained its reasoning as follows
[T]he erroneous comma eliminated Talleys sole defense by suggesting that Talley had no right to defend himself with any force whatsoever unless Mullendore threatened him with deadly force Even if Mullendore attacked Talley with nondeadly force Talley would have the duty to retreat according to this erroneous instruction
at 1017 However the instruction at issue in Talley was Florida Standard Jury
Instruction (Criminal) 36(g) Justifiable Use of Non-Deadly Force which is the
standard self-defense instruction E Talleys only defense was that the alleged victim
John Mullendore had attacked him with nondeadly force and thus Talley was justified in
using nondeadly force in self defense amp at 1016 Accordingly the Talley court held
that the instruction given in that case was erroneous because the justifiable use of
nondeadly force was Talleys only defense and any confusion caused by the instruction
may have deprived Talley of a fair trial because his defense was plausible Jjln at 1018
(emphasis added) The Talley court also noted that the States reliance on the
erroneous instruction in its closing argument supported the conclusion that the error
was fundamental Id at 1017
Although the jury instruction on justifiable use of deadly force Florida
Standard Jury instruction (Criminal) 36(f) also contains the errant comma that caused
the problem in Talley none of the conditions leading to the conclusion that the
instruction was fundamentally erroneous in Talley are present here The first and most
obvious difference is that unlike in Talley Mr Rangel requested and the trial court
instructed the jury on the justifiable use of deadly force not nondeadly force The
facts in this case did not warrant an instruction on nondeadly force because Mr Rangel
unquestionably used deadly force-he shot both victims with a firearm Therefore the
Talley courts concern that the erroneous placement of the comma had the potential to
vitiate Talleys sole defense by causing the jury to think that Talley had no right to
defend himself with any force at all unless he was being threatened with deadly force is
not present here Furthermore because Mr Rangels sole defense was the justifiable
use of deadly force the prosecutors comment in closing that the evidence did not
support a finding that when Mr Rangel fired those shots he was in imminent danger of
death or great bodily harm was a proper comment on the evidence See Merck v
State 975 So 2d 1054 1061 (Fla 2007) (Closing argument is an opportunity for
counsel to review the evidence and to explicate those inferences which may reasonably
be drawn from the evidence)
For these reasons we conclude that even though Florida Jury Instruction
(Criminal) 36(f) contains the same errant comma found in Instruction 36(g) the error in
this instruction is neither fundamental nor harmful where as in this case the
defendants sole defense at trial is the justifiable use of deadly force
IV CONCLUSION
There was no error with respect to the jury instruction on manslaughter or
the jury instruction on justifiable use of deadly force However because the lesser-
included offense of attempted manslaughter was one step removed from the primary
charge upon which the jury found Mr Rangel guilty the instruction on that charge
constituted fundamental error Williams 123 So 3d at 27 Accordingly we reverse Mr
Rangels judgment and sentence on count two of the indictment for the attempted
second-degree murder of Vidal Quijada and remand for a new trial on that count only
In all other respects we affirm Mr Rangels judgments and sentences
Affirmed inpart reversed in part and remanded
ALTENBERND and LaROSE JJ Concur
- 7 shy
EXHIBIT-A
IN THE SECOND DISTRICT COURT OF APPEAL LAKELAND FLORIDA
December 13 2013
FRANCISCO RANGEL ) )
Appellant ) )
v ) Case No 2D11-835 )
STATE OF FLORIDA ) )
Appellee )
Upon consideration of the Appellants motion for rehearing filed April 15
2013 it is
ORDERED that the Appellants motion for rehearing is granted This
courts opinion dated April 3 2013 is withdrawn and the attached opinion is substituted
therefor
I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER
ES B R LERK 06
NOT FINAL UNTIL TIME EXPlRES TO FILE REHEARING MOTION AND IF FILED DETERMlNED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
FRANCISCO RANGEL ) )
Appellant ) ) _ _
v ) Case No 2D11-835 )
STATE OF FLORIDA ) )
Appellee )
Opinion filed December 13 2013
Appeal from the Circuit Court for Hillsborough County Emmett Lamar Battles Judge
Howard L Dimmig 11 Public Defender and John C Fisher Assistant Public Defender Bartow for Appellant
Pamela Jo Bondi Attorney General Tallahassee and Diana K Bock Assistant Attorney General Tampa for Appellee
WALLACE Judge
Francisco Rangel was charged in the court below in a fourteen-count
indictment The trial court severed counts one and two for trial A jury found Mr Rangel
guilty on count one of the indictment for the second-degree murder of Michael Longoria
while possessing and discharging a firearm The jury also found Mr Rangel guilty on
count two of the indictment for the attempted second-degree murder of Vidal Quijada
while possessing and discharging a firearm The trial court adjudged Mr Rangel to be
guilty of both offenses and sentenced him to life imprisonment on count one with a
twenty-five-year minimum and thirty years in prison on count two with a twenty-five-year
minimum The sentences were designated to run consecutively Mr Rangel has
appealed his judgment and sentences on counts one and two of the indictment
Mr Rangel argues that the trial court committed fundamental error in three
of the instructions given to the jury2 We find merit only in Mr Rangels argument
After Mr Rangel was sentenced on counts one and two he entered negotiated pleas to counts three through fourteen of the indictment The trial court sentenced him to life in prison on six of the counts fifteen years on five of the counts and five years on the remaining counts The trial court imposed minimum mandatory sentences varying between three and twenty-five years on eight of the counts All of the sentences were designated to run consecutively to each other and to the sentences previously imposed on counts one and two The judgment and sentences imposed on counts three through fourteen are not at issue in this appeal
2On April 3 2013 this court affirmed Mr Rangels judgment and sentences imposed on counts one and two of the indictment against him in a per curiam decision without a written opinion In a motion for rehearing Mr Rangels appellate counsel candidly informed this court that he overlooked the jury instruction issues considered herein when he prepared the initial brief Generally we will not consider new arguments made on rehearing that a party has not advanced initially However we exercise our discretion to consider Mr Rangels new arguments on rehearing to avoid middot further appellate filings and to limit the waste of judicial resources If we simply denied Mr Rangels motion for rehearing then a petition for ineffective assistance of appellate counsel would inevitably follow and the clerk would assign another panel to review the matter See Banek v State 75 So 3d 762 765 (Fla 2d DCA 2011 ) (concluding that Baneks appellate counsel rendered ineffective assistance by failing to seek permission to file a supplemental brief on the issue of fundamental error in the attempted manslaughter by act instruction) Pierce v State 121 So 3d 1091 (Fla 5th DCA 2013) (holding that appellate counsel rendered ineffective assistance by failing to argue that it was fundamental error for the trial court to give the standard jun instruction for attempted manslaughter containing the erroneous element that the defendant committed an act with the intent to cause the death of the victim)
- 2 shy
concerning the jury instruction on the lesser-included offense of attempted
manslaughter on count two relating to the victim Vidal Quijada
I THE INSTRUCTION ON MANSLAUGHTER BY ACT
With regard to count one involving the victim Michael Longoria Mr
Rangel argues that the lesser-included offense instruction on manslaughter by act was
fundamentally erroneous because it instructed the jury that it could find Mr Rangel
guilty of the lesser-included offense of manslaughter if the State proved that
1 Michael Longoria is dead
2 Francisco Rangel committed an act which was intended to cause the death of Michael Longoria
We find no error fundamental or othenvise because the instruction did
not contain the language Mr Rangel describes Instead paragraph 2 of the instruction
informed the jury that it had to find that Francisco Rangels act(s) caused the death of
Michael Longoria The instruction further informed the jury that [i]n order to convict of
manslaughter by act it is not necessary for the State to prove that the defendant had an
intent to cause death only an intent to commit an act that was not justified or excusable
and which caused death This instruction was not erroneous See State v
Montgomery 39 So 3d 252 259-60 (Fla 2010) ([T]he intent which the State must
prove for 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) We also note that the
written instructions provided to the jury were identical to the oral instructions issued by
the trial judge Accordingly we affirm Mr Rangels judgment and sentence for the
second-degree murder of Michael Longoria
- 3 shy
ll THE INSTRUCTION ON ATTEMPTED MANSLAUGHTER BY ACT
With regard to count two relating to Vidal Quijada the trial court instructed
the jury that to find Mr Rangel guilty of the lesser-included offense of attempted
manslaughter the State was required to prove that Francisco Rangel committed an
act which was intended to cause the death of Vidal Quijada and would have resulted in
the death of Vida Quijada except that someone prevented Francisco Rangel from killing
Vidal Quijada or he failed to do so3 The Supreme Court of Florida has declared that
the issuance of an almost identical instruction constituted fundamental error in Williams
v State 123 So 3d 23 27 (Fla 2013) ([A] trial court commits fundamental error in
giving the standard jury instruction on attempted manslaughter by act where the
defendant is convicted of a crimeno more than one step removed from the improperly
instructed offense) Accordingly we reverse Mr Rangels judgment and sentence for
the attempted murder of Vidal Quijada and remand for a new trial on this count only
111 THE INSTRUCTION ON THE JUSTIFIABLE USE OF DEADLY FORCE
Mr Rangel argues that the jury instruction on justifiable use of deadly
force was fundamentally erroneous The trial courts instruction to the jury on this issue
included the following language
If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be he had no duty to retreat and had the right to stand his ground and meet force with force including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of Attempted Murder or Armed Robbery
(Emphasis added) However section 776013 Florida Statutes (2010) provides
3Again the trial courts oral instruction was identical to the written instruction
- 4 shy
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force includinqmiddotdeadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony
(Emphasis added) Although the standard jury instruction follows the statutory
language it sets off the phrase including deadly force with an additional comma This
court found the use of this language to constitute fundamental error under the
circumstances presented in Talley v State 106 So 3d 1015 (Fla 2d DCA 2013) The
Talley court explained its reasoning as follows
[T]he erroneous comma eliminated Talleys sole defense by suggesting that Talley had no right to defend himself with any force whatsoever unless Mullendore threatened him with deadly force Even if Mullendore attacked Talley with nondeadly force Talley would have the duty to retreat according to this erroneous instruction
at 1017 However the instruction at issue in Talley was Florida Standard Jury
Instruction (Criminal) 36(g) Justifiable Use of Non-Deadly Force which is the
standard self-defense instruction E Talleys only defense was that the alleged victim
John Mullendore had attacked him with nondeadly force and thus Talley was justified in
using nondeadly force in self defense amp at 1016 Accordingly the Talley court held
that the instruction given in that case was erroneous because the justifiable use of
nondeadly force was Talleys only defense and any confusion caused by the instruction
may have deprived Talley of a fair trial because his defense was plausible Jjln at 1018
(emphasis added) The Talley court also noted that the States reliance on the
erroneous instruction in its closing argument supported the conclusion that the error
was fundamental Id at 1017
Although the jury instruction on justifiable use of deadly force Florida
Standard Jury instruction (Criminal) 36(f) also contains the errant comma that caused
the problem in Talley none of the conditions leading to the conclusion that the
instruction was fundamentally erroneous in Talley are present here The first and most
obvious difference is that unlike in Talley Mr Rangel requested and the trial court
instructed the jury on the justifiable use of deadly force not nondeadly force The
facts in this case did not warrant an instruction on nondeadly force because Mr Rangel
unquestionably used deadly force-he shot both victims with a firearm Therefore the
Talley courts concern that the erroneous placement of the comma had the potential to
vitiate Talleys sole defense by causing the jury to think that Talley had no right to
defend himself with any force at all unless he was being threatened with deadly force is
not present here Furthermore because Mr Rangels sole defense was the justifiable
use of deadly force the prosecutors comment in closing that the evidence did not
support a finding that when Mr Rangel fired those shots he was in imminent danger of
death or great bodily harm was a proper comment on the evidence See Merck v
State 975 So 2d 1054 1061 (Fla 2007) (Closing argument is an opportunity for
counsel to review the evidence and to explicate those inferences which may reasonably
be drawn from the evidence)
For these reasons we conclude that even though Florida Jury Instruction
(Criminal) 36(f) contains the same errant comma found in Instruction 36(g) the error in
this instruction is neither fundamental nor harmful where as in this case the
defendants sole defense at trial is the justifiable use of deadly force
IV CONCLUSION
There was no error with respect to the jury instruction on manslaughter or
the jury instruction on justifiable use of deadly force However because the lesser-
included offense of attempted manslaughter was one step removed from the primary
charge upon which the jury found Mr Rangel guilty the instruction on that charge
constituted fundamental error Williams 123 So 3d at 27 Accordingly we reverse Mr
Rangels judgment and sentence on count two of the indictment for the attempted
second-degree murder of Vidal Quijada and remand for a new trial on that count only
In all other respects we affirm Mr Rangels judgments and sentences
Affirmed inpart reversed in part and remanded
ALTENBERND and LaROSE JJ Concur
- 7 shy
IN THE SECOND DISTRICT COURT OF APPEAL LAKELAND FLORIDA
December 13 2013
FRANCISCO RANGEL ) )
Appellant ) )
v ) Case No 2D11-835 )
STATE OF FLORIDA ) )
Appellee )
Upon consideration of the Appellants motion for rehearing filed April 15
2013 it is
ORDERED that the Appellants motion for rehearing is granted This
courts opinion dated April 3 2013 is withdrawn and the attached opinion is substituted
therefor
I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER
ES B R LERK 06
NOT FINAL UNTIL TIME EXPlRES TO FILE REHEARING MOTION AND IF FILED DETERMlNED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
FRANCISCO RANGEL ) )
Appellant ) ) _ _
v ) Case No 2D11-835 )
STATE OF FLORIDA ) )
Appellee )
Opinion filed December 13 2013
Appeal from the Circuit Court for Hillsborough County Emmett Lamar Battles Judge
Howard L Dimmig 11 Public Defender and John C Fisher Assistant Public Defender Bartow for Appellant
Pamela Jo Bondi Attorney General Tallahassee and Diana K Bock Assistant Attorney General Tampa for Appellee
WALLACE Judge
Francisco Rangel was charged in the court below in a fourteen-count
indictment The trial court severed counts one and two for trial A jury found Mr Rangel
guilty on count one of the indictment for the second-degree murder of Michael Longoria
while possessing and discharging a firearm The jury also found Mr Rangel guilty on
count two of the indictment for the attempted second-degree murder of Vidal Quijada
while possessing and discharging a firearm The trial court adjudged Mr Rangel to be
guilty of both offenses and sentenced him to life imprisonment on count one with a
twenty-five-year minimum and thirty years in prison on count two with a twenty-five-year
minimum The sentences were designated to run consecutively Mr Rangel has
appealed his judgment and sentences on counts one and two of the indictment
Mr Rangel argues that the trial court committed fundamental error in three
of the instructions given to the jury2 We find merit only in Mr Rangels argument
After Mr Rangel was sentenced on counts one and two he entered negotiated pleas to counts three through fourteen of the indictment The trial court sentenced him to life in prison on six of the counts fifteen years on five of the counts and five years on the remaining counts The trial court imposed minimum mandatory sentences varying between three and twenty-five years on eight of the counts All of the sentences were designated to run consecutively to each other and to the sentences previously imposed on counts one and two The judgment and sentences imposed on counts three through fourteen are not at issue in this appeal
2On April 3 2013 this court affirmed Mr Rangels judgment and sentences imposed on counts one and two of the indictment against him in a per curiam decision without a written opinion In a motion for rehearing Mr Rangels appellate counsel candidly informed this court that he overlooked the jury instruction issues considered herein when he prepared the initial brief Generally we will not consider new arguments made on rehearing that a party has not advanced initially However we exercise our discretion to consider Mr Rangels new arguments on rehearing to avoid middot further appellate filings and to limit the waste of judicial resources If we simply denied Mr Rangels motion for rehearing then a petition for ineffective assistance of appellate counsel would inevitably follow and the clerk would assign another panel to review the matter See Banek v State 75 So 3d 762 765 (Fla 2d DCA 2011 ) (concluding that Baneks appellate counsel rendered ineffective assistance by failing to seek permission to file a supplemental brief on the issue of fundamental error in the attempted manslaughter by act instruction) Pierce v State 121 So 3d 1091 (Fla 5th DCA 2013) (holding that appellate counsel rendered ineffective assistance by failing to argue that it was fundamental error for the trial court to give the standard jun instruction for attempted manslaughter containing the erroneous element that the defendant committed an act with the intent to cause the death of the victim)
- 2 shy
concerning the jury instruction on the lesser-included offense of attempted
manslaughter on count two relating to the victim Vidal Quijada
I THE INSTRUCTION ON MANSLAUGHTER BY ACT
With regard to count one involving the victim Michael Longoria Mr
Rangel argues that the lesser-included offense instruction on manslaughter by act was
fundamentally erroneous because it instructed the jury that it could find Mr Rangel
guilty of the lesser-included offense of manslaughter if the State proved that
1 Michael Longoria is dead
2 Francisco Rangel committed an act which was intended to cause the death of Michael Longoria
We find no error fundamental or othenvise because the instruction did
not contain the language Mr Rangel describes Instead paragraph 2 of the instruction
informed the jury that it had to find that Francisco Rangels act(s) caused the death of
Michael Longoria The instruction further informed the jury that [i]n order to convict of
manslaughter by act it is not necessary for the State to prove that the defendant had an
intent to cause death only an intent to commit an act that was not justified or excusable
and which caused death This instruction was not erroneous See State v
Montgomery 39 So 3d 252 259-60 (Fla 2010) ([T]he intent which the State must
prove for 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) We also note that the
written instructions provided to the jury were identical to the oral instructions issued by
the trial judge Accordingly we affirm Mr Rangels judgment and sentence for the
second-degree murder of Michael Longoria
- 3 shy
ll THE INSTRUCTION ON ATTEMPTED MANSLAUGHTER BY ACT
With regard to count two relating to Vidal Quijada the trial court instructed
the jury that to find Mr Rangel guilty of the lesser-included offense of attempted
manslaughter the State was required to prove that Francisco Rangel committed an
act which was intended to cause the death of Vidal Quijada and would have resulted in
the death of Vida Quijada except that someone prevented Francisco Rangel from killing
Vidal Quijada or he failed to do so3 The Supreme Court of Florida has declared that
the issuance of an almost identical instruction constituted fundamental error in Williams
v State 123 So 3d 23 27 (Fla 2013) ([A] trial court commits fundamental error in
giving the standard jury instruction on attempted manslaughter by act where the
defendant is convicted of a crimeno more than one step removed from the improperly
instructed offense) Accordingly we reverse Mr Rangels judgment and sentence for
the attempted murder of Vidal Quijada and remand for a new trial on this count only
111 THE INSTRUCTION ON THE JUSTIFIABLE USE OF DEADLY FORCE
Mr Rangel argues that the jury instruction on justifiable use of deadly
force was fundamentally erroneous The trial courts instruction to the jury on this issue
included the following language
If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be he had no duty to retreat and had the right to stand his ground and meet force with force including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of Attempted Murder or Armed Robbery
(Emphasis added) However section 776013 Florida Statutes (2010) provides
3Again the trial courts oral instruction was identical to the written instruction
- 4 shy
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force includinqmiddotdeadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony
(Emphasis added) Although the standard jury instruction follows the statutory
language it sets off the phrase including deadly force with an additional comma This
court found the use of this language to constitute fundamental error under the
circumstances presented in Talley v State 106 So 3d 1015 (Fla 2d DCA 2013) The
Talley court explained its reasoning as follows
[T]he erroneous comma eliminated Talleys sole defense by suggesting that Talley had no right to defend himself with any force whatsoever unless Mullendore threatened him with deadly force Even if Mullendore attacked Talley with nondeadly force Talley would have the duty to retreat according to this erroneous instruction
at 1017 However the instruction at issue in Talley was Florida Standard Jury
Instruction (Criminal) 36(g) Justifiable Use of Non-Deadly Force which is the
standard self-defense instruction E Talleys only defense was that the alleged victim
John Mullendore had attacked him with nondeadly force and thus Talley was justified in
using nondeadly force in self defense amp at 1016 Accordingly the Talley court held
that the instruction given in that case was erroneous because the justifiable use of
nondeadly force was Talleys only defense and any confusion caused by the instruction
may have deprived Talley of a fair trial because his defense was plausible Jjln at 1018
(emphasis added) The Talley court also noted that the States reliance on the
erroneous instruction in its closing argument supported the conclusion that the error
was fundamental Id at 1017
Although the jury instruction on justifiable use of deadly force Florida
Standard Jury instruction (Criminal) 36(f) also contains the errant comma that caused
the problem in Talley none of the conditions leading to the conclusion that the
instruction was fundamentally erroneous in Talley are present here The first and most
obvious difference is that unlike in Talley Mr Rangel requested and the trial court
instructed the jury on the justifiable use of deadly force not nondeadly force The
facts in this case did not warrant an instruction on nondeadly force because Mr Rangel
unquestionably used deadly force-he shot both victims with a firearm Therefore the
Talley courts concern that the erroneous placement of the comma had the potential to
vitiate Talleys sole defense by causing the jury to think that Talley had no right to
defend himself with any force at all unless he was being threatened with deadly force is
not present here Furthermore because Mr Rangels sole defense was the justifiable
use of deadly force the prosecutors comment in closing that the evidence did not
support a finding that when Mr Rangel fired those shots he was in imminent danger of
death or great bodily harm was a proper comment on the evidence See Merck v
State 975 So 2d 1054 1061 (Fla 2007) (Closing argument is an opportunity for
counsel to review the evidence and to explicate those inferences which may reasonably
be drawn from the evidence)
For these reasons we conclude that even though Florida Jury Instruction
(Criminal) 36(f) contains the same errant comma found in Instruction 36(g) the error in
this instruction is neither fundamental nor harmful where as in this case the
defendants sole defense at trial is the justifiable use of deadly force
IV CONCLUSION
There was no error with respect to the jury instruction on manslaughter or
the jury instruction on justifiable use of deadly force However because the lesser-
included offense of attempted manslaughter was one step removed from the primary
charge upon which the jury found Mr Rangel guilty the instruction on that charge
constituted fundamental error Williams 123 So 3d at 27 Accordingly we reverse Mr
Rangels judgment and sentence on count two of the indictment for the attempted
second-degree murder of Vidal Quijada and remand for a new trial on that count only
In all other respects we affirm Mr Rangels judgments and sentences
Affirmed inpart reversed in part and remanded
ALTENBERND and LaROSE JJ Concur
- 7 shy
NOT FINAL UNTIL TIME EXPlRES TO FILE REHEARING MOTION AND IF FILED DETERMlNED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
FRANCISCO RANGEL ) )
Appellant ) ) _ _
v ) Case No 2D11-835 )
STATE OF FLORIDA ) )
Appellee )
Opinion filed December 13 2013
Appeal from the Circuit Court for Hillsborough County Emmett Lamar Battles Judge
Howard L Dimmig 11 Public Defender and John C Fisher Assistant Public Defender Bartow for Appellant
Pamela Jo Bondi Attorney General Tallahassee and Diana K Bock Assistant Attorney General Tampa for Appellee
WALLACE Judge
Francisco Rangel was charged in the court below in a fourteen-count
indictment The trial court severed counts one and two for trial A jury found Mr Rangel
guilty on count one of the indictment for the second-degree murder of Michael Longoria
while possessing and discharging a firearm The jury also found Mr Rangel guilty on
count two of the indictment for the attempted second-degree murder of Vidal Quijada
while possessing and discharging a firearm The trial court adjudged Mr Rangel to be
guilty of both offenses and sentenced him to life imprisonment on count one with a
twenty-five-year minimum and thirty years in prison on count two with a twenty-five-year
minimum The sentences were designated to run consecutively Mr Rangel has
appealed his judgment and sentences on counts one and two of the indictment
Mr Rangel argues that the trial court committed fundamental error in three
of the instructions given to the jury2 We find merit only in Mr Rangels argument
After Mr Rangel was sentenced on counts one and two he entered negotiated pleas to counts three through fourteen of the indictment The trial court sentenced him to life in prison on six of the counts fifteen years on five of the counts and five years on the remaining counts The trial court imposed minimum mandatory sentences varying between three and twenty-five years on eight of the counts All of the sentences were designated to run consecutively to each other and to the sentences previously imposed on counts one and two The judgment and sentences imposed on counts three through fourteen are not at issue in this appeal
2On April 3 2013 this court affirmed Mr Rangels judgment and sentences imposed on counts one and two of the indictment against him in a per curiam decision without a written opinion In a motion for rehearing Mr Rangels appellate counsel candidly informed this court that he overlooked the jury instruction issues considered herein when he prepared the initial brief Generally we will not consider new arguments made on rehearing that a party has not advanced initially However we exercise our discretion to consider Mr Rangels new arguments on rehearing to avoid middot further appellate filings and to limit the waste of judicial resources If we simply denied Mr Rangels motion for rehearing then a petition for ineffective assistance of appellate counsel would inevitably follow and the clerk would assign another panel to review the matter See Banek v State 75 So 3d 762 765 (Fla 2d DCA 2011 ) (concluding that Baneks appellate counsel rendered ineffective assistance by failing to seek permission to file a supplemental brief on the issue of fundamental error in the attempted manslaughter by act instruction) Pierce v State 121 So 3d 1091 (Fla 5th DCA 2013) (holding that appellate counsel rendered ineffective assistance by failing to argue that it was fundamental error for the trial court to give the standard jun instruction for attempted manslaughter containing the erroneous element that the defendant committed an act with the intent to cause the death of the victim)
- 2 shy
concerning the jury instruction on the lesser-included offense of attempted
manslaughter on count two relating to the victim Vidal Quijada
I THE INSTRUCTION ON MANSLAUGHTER BY ACT
With regard to count one involving the victim Michael Longoria Mr
Rangel argues that the lesser-included offense instruction on manslaughter by act was
fundamentally erroneous because it instructed the jury that it could find Mr Rangel
guilty of the lesser-included offense of manslaughter if the State proved that
1 Michael Longoria is dead
2 Francisco Rangel committed an act which was intended to cause the death of Michael Longoria
We find no error fundamental or othenvise because the instruction did
not contain the language Mr Rangel describes Instead paragraph 2 of the instruction
informed the jury that it had to find that Francisco Rangels act(s) caused the death of
Michael Longoria The instruction further informed the jury that [i]n order to convict of
manslaughter by act it is not necessary for the State to prove that the defendant had an
intent to cause death only an intent to commit an act that was not justified or excusable
and which caused death This instruction was not erroneous See State v
Montgomery 39 So 3d 252 259-60 (Fla 2010) ([T]he intent which the State must
prove for 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) We also note that the
written instructions provided to the jury were identical to the oral instructions issued by
the trial judge Accordingly we affirm Mr Rangels judgment and sentence for the
second-degree murder of Michael Longoria
- 3 shy
ll THE INSTRUCTION ON ATTEMPTED MANSLAUGHTER BY ACT
With regard to count two relating to Vidal Quijada the trial court instructed
the jury that to find Mr Rangel guilty of the lesser-included offense of attempted
manslaughter the State was required to prove that Francisco Rangel committed an
act which was intended to cause the death of Vidal Quijada and would have resulted in
the death of Vida Quijada except that someone prevented Francisco Rangel from killing
Vidal Quijada or he failed to do so3 The Supreme Court of Florida has declared that
the issuance of an almost identical instruction constituted fundamental error in Williams
v State 123 So 3d 23 27 (Fla 2013) ([A] trial court commits fundamental error in
giving the standard jury instruction on attempted manslaughter by act where the
defendant is convicted of a crimeno more than one step removed from the improperly
instructed offense) Accordingly we reverse Mr Rangels judgment and sentence for
the attempted murder of Vidal Quijada and remand for a new trial on this count only
111 THE INSTRUCTION ON THE JUSTIFIABLE USE OF DEADLY FORCE
Mr Rangel argues that the jury instruction on justifiable use of deadly
force was fundamentally erroneous The trial courts instruction to the jury on this issue
included the following language
If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be he had no duty to retreat and had the right to stand his ground and meet force with force including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of Attempted Murder or Armed Robbery
(Emphasis added) However section 776013 Florida Statutes (2010) provides
3Again the trial courts oral instruction was identical to the written instruction
- 4 shy
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force includinqmiddotdeadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony
(Emphasis added) Although the standard jury instruction follows the statutory
language it sets off the phrase including deadly force with an additional comma This
court found the use of this language to constitute fundamental error under the
circumstances presented in Talley v State 106 So 3d 1015 (Fla 2d DCA 2013) The
Talley court explained its reasoning as follows
[T]he erroneous comma eliminated Talleys sole defense by suggesting that Talley had no right to defend himself with any force whatsoever unless Mullendore threatened him with deadly force Even if Mullendore attacked Talley with nondeadly force Talley would have the duty to retreat according to this erroneous instruction
at 1017 However the instruction at issue in Talley was Florida Standard Jury
Instruction (Criminal) 36(g) Justifiable Use of Non-Deadly Force which is the
standard self-defense instruction E Talleys only defense was that the alleged victim
John Mullendore had attacked him with nondeadly force and thus Talley was justified in
using nondeadly force in self defense amp at 1016 Accordingly the Talley court held
that the instruction given in that case was erroneous because the justifiable use of
nondeadly force was Talleys only defense and any confusion caused by the instruction
may have deprived Talley of a fair trial because his defense was plausible Jjln at 1018
(emphasis added) The Talley court also noted that the States reliance on the
erroneous instruction in its closing argument supported the conclusion that the error
was fundamental Id at 1017
Although the jury instruction on justifiable use of deadly force Florida
Standard Jury instruction (Criminal) 36(f) also contains the errant comma that caused
the problem in Talley none of the conditions leading to the conclusion that the
instruction was fundamentally erroneous in Talley are present here The first and most
obvious difference is that unlike in Talley Mr Rangel requested and the trial court
instructed the jury on the justifiable use of deadly force not nondeadly force The
facts in this case did not warrant an instruction on nondeadly force because Mr Rangel
unquestionably used deadly force-he shot both victims with a firearm Therefore the
Talley courts concern that the erroneous placement of the comma had the potential to
vitiate Talleys sole defense by causing the jury to think that Talley had no right to
defend himself with any force at all unless he was being threatened with deadly force is
not present here Furthermore because Mr Rangels sole defense was the justifiable
use of deadly force the prosecutors comment in closing that the evidence did not
support a finding that when Mr Rangel fired those shots he was in imminent danger of
death or great bodily harm was a proper comment on the evidence See Merck v
State 975 So 2d 1054 1061 (Fla 2007) (Closing argument is an opportunity for
counsel to review the evidence and to explicate those inferences which may reasonably
be drawn from the evidence)
For these reasons we conclude that even though Florida Jury Instruction
(Criminal) 36(f) contains the same errant comma found in Instruction 36(g) the error in
this instruction is neither fundamental nor harmful where as in this case the
defendants sole defense at trial is the justifiable use of deadly force
IV CONCLUSION
There was no error with respect to the jury instruction on manslaughter or
the jury instruction on justifiable use of deadly force However because the lesser-
included offense of attempted manslaughter was one step removed from the primary
charge upon which the jury found Mr Rangel guilty the instruction on that charge
constituted fundamental error Williams 123 So 3d at 27 Accordingly we reverse Mr
Rangels judgment and sentence on count two of the indictment for the attempted
second-degree murder of Vidal Quijada and remand for a new trial on that count only
In all other respects we affirm Mr Rangels judgments and sentences
Affirmed inpart reversed in part and remanded
ALTENBERND and LaROSE JJ Concur
- 7 shy
while possessing and discharging a firearm The jury also found Mr Rangel guilty on
count two of the indictment for the attempted second-degree murder of Vidal Quijada
while possessing and discharging a firearm The trial court adjudged Mr Rangel to be
guilty of both offenses and sentenced him to life imprisonment on count one with a
twenty-five-year minimum and thirty years in prison on count two with a twenty-five-year
minimum The sentences were designated to run consecutively Mr Rangel has
appealed his judgment and sentences on counts one and two of the indictment
Mr Rangel argues that the trial court committed fundamental error in three
of the instructions given to the jury2 We find merit only in Mr Rangels argument
After Mr Rangel was sentenced on counts one and two he entered negotiated pleas to counts three through fourteen of the indictment The trial court sentenced him to life in prison on six of the counts fifteen years on five of the counts and five years on the remaining counts The trial court imposed minimum mandatory sentences varying between three and twenty-five years on eight of the counts All of the sentences were designated to run consecutively to each other and to the sentences previously imposed on counts one and two The judgment and sentences imposed on counts three through fourteen are not at issue in this appeal
2On April 3 2013 this court affirmed Mr Rangels judgment and sentences imposed on counts one and two of the indictment against him in a per curiam decision without a written opinion In a motion for rehearing Mr Rangels appellate counsel candidly informed this court that he overlooked the jury instruction issues considered herein when he prepared the initial brief Generally we will not consider new arguments made on rehearing that a party has not advanced initially However we exercise our discretion to consider Mr Rangels new arguments on rehearing to avoid middot further appellate filings and to limit the waste of judicial resources If we simply denied Mr Rangels motion for rehearing then a petition for ineffective assistance of appellate counsel would inevitably follow and the clerk would assign another panel to review the matter See Banek v State 75 So 3d 762 765 (Fla 2d DCA 2011 ) (concluding that Baneks appellate counsel rendered ineffective assistance by failing to seek permission to file a supplemental brief on the issue of fundamental error in the attempted manslaughter by act instruction) Pierce v State 121 So 3d 1091 (Fla 5th DCA 2013) (holding that appellate counsel rendered ineffective assistance by failing to argue that it was fundamental error for the trial court to give the standard jun instruction for attempted manslaughter containing the erroneous element that the defendant committed an act with the intent to cause the death of the victim)
- 2 shy
concerning the jury instruction on the lesser-included offense of attempted
manslaughter on count two relating to the victim Vidal Quijada
I THE INSTRUCTION ON MANSLAUGHTER BY ACT
With regard to count one involving the victim Michael Longoria Mr
Rangel argues that the lesser-included offense instruction on manslaughter by act was
fundamentally erroneous because it instructed the jury that it could find Mr Rangel
guilty of the lesser-included offense of manslaughter if the State proved that
1 Michael Longoria is dead
2 Francisco Rangel committed an act which was intended to cause the death of Michael Longoria
We find no error fundamental or othenvise because the instruction did
not contain the language Mr Rangel describes Instead paragraph 2 of the instruction
informed the jury that it had to find that Francisco Rangels act(s) caused the death of
Michael Longoria The instruction further informed the jury that [i]n order to convict of
manslaughter by act it is not necessary for the State to prove that the defendant had an
intent to cause death only an intent to commit an act that was not justified or excusable
and which caused death This instruction was not erroneous See State v
Montgomery 39 So 3d 252 259-60 (Fla 2010) ([T]he intent which the State must
prove for 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) We also note that the
written instructions provided to the jury were identical to the oral instructions issued by
the trial judge Accordingly we affirm Mr Rangels judgment and sentence for the
second-degree murder of Michael Longoria
- 3 shy
ll THE INSTRUCTION ON ATTEMPTED MANSLAUGHTER BY ACT
With regard to count two relating to Vidal Quijada the trial court instructed
the jury that to find Mr Rangel guilty of the lesser-included offense of attempted
manslaughter the State was required to prove that Francisco Rangel committed an
act which was intended to cause the death of Vidal Quijada and would have resulted in
the death of Vida Quijada except that someone prevented Francisco Rangel from killing
Vidal Quijada or he failed to do so3 The Supreme Court of Florida has declared that
the issuance of an almost identical instruction constituted fundamental error in Williams
v State 123 So 3d 23 27 (Fla 2013) ([A] trial court commits fundamental error in
giving the standard jury instruction on attempted manslaughter by act where the
defendant is convicted of a crimeno more than one step removed from the improperly
instructed offense) Accordingly we reverse Mr Rangels judgment and sentence for
the attempted murder of Vidal Quijada and remand for a new trial on this count only
111 THE INSTRUCTION ON THE JUSTIFIABLE USE OF DEADLY FORCE
Mr Rangel argues that the jury instruction on justifiable use of deadly
force was fundamentally erroneous The trial courts instruction to the jury on this issue
included the following language
If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be he had no duty to retreat and had the right to stand his ground and meet force with force including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of Attempted Murder or Armed Robbery
(Emphasis added) However section 776013 Florida Statutes (2010) provides
3Again the trial courts oral instruction was identical to the written instruction
- 4 shy
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force includinqmiddotdeadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony
(Emphasis added) Although the standard jury instruction follows the statutory
language it sets off the phrase including deadly force with an additional comma This
court found the use of this language to constitute fundamental error under the
circumstances presented in Talley v State 106 So 3d 1015 (Fla 2d DCA 2013) The
Talley court explained its reasoning as follows
[T]he erroneous comma eliminated Talleys sole defense by suggesting that Talley had no right to defend himself with any force whatsoever unless Mullendore threatened him with deadly force Even if Mullendore attacked Talley with nondeadly force Talley would have the duty to retreat according to this erroneous instruction
at 1017 However the instruction at issue in Talley was Florida Standard Jury
Instruction (Criminal) 36(g) Justifiable Use of Non-Deadly Force which is the
standard self-defense instruction E Talleys only defense was that the alleged victim
John Mullendore had attacked him with nondeadly force and thus Talley was justified in
using nondeadly force in self defense amp at 1016 Accordingly the Talley court held
that the instruction given in that case was erroneous because the justifiable use of
nondeadly force was Talleys only defense and any confusion caused by the instruction
may have deprived Talley of a fair trial because his defense was plausible Jjln at 1018
(emphasis added) The Talley court also noted that the States reliance on the
erroneous instruction in its closing argument supported the conclusion that the error
was fundamental Id at 1017
Although the jury instruction on justifiable use of deadly force Florida
Standard Jury instruction (Criminal) 36(f) also contains the errant comma that caused
the problem in Talley none of the conditions leading to the conclusion that the
instruction was fundamentally erroneous in Talley are present here The first and most
obvious difference is that unlike in Talley Mr Rangel requested and the trial court
instructed the jury on the justifiable use of deadly force not nondeadly force The
facts in this case did not warrant an instruction on nondeadly force because Mr Rangel
unquestionably used deadly force-he shot both victims with a firearm Therefore the
Talley courts concern that the erroneous placement of the comma had the potential to
vitiate Talleys sole defense by causing the jury to think that Talley had no right to
defend himself with any force at all unless he was being threatened with deadly force is
not present here Furthermore because Mr Rangels sole defense was the justifiable
use of deadly force the prosecutors comment in closing that the evidence did not
support a finding that when Mr Rangel fired those shots he was in imminent danger of
death or great bodily harm was a proper comment on the evidence See Merck v
State 975 So 2d 1054 1061 (Fla 2007) (Closing argument is an opportunity for
counsel to review the evidence and to explicate those inferences which may reasonably
be drawn from the evidence)
For these reasons we conclude that even though Florida Jury Instruction
(Criminal) 36(f) contains the same errant comma found in Instruction 36(g) the error in
this instruction is neither fundamental nor harmful where as in this case the
defendants sole defense at trial is the justifiable use of deadly force
IV CONCLUSION
There was no error with respect to the jury instruction on manslaughter or
the jury instruction on justifiable use of deadly force However because the lesser-
included offense of attempted manslaughter was one step removed from the primary
charge upon which the jury found Mr Rangel guilty the instruction on that charge
constituted fundamental error Williams 123 So 3d at 27 Accordingly we reverse Mr
Rangels judgment and sentence on count two of the indictment for the attempted
second-degree murder of Vidal Quijada and remand for a new trial on that count only
In all other respects we affirm Mr Rangels judgments and sentences
Affirmed inpart reversed in part and remanded
ALTENBERND and LaROSE JJ Concur
- 7 shy
concerning the jury instruction on the lesser-included offense of attempted
manslaughter on count two relating to the victim Vidal Quijada
I THE INSTRUCTION ON MANSLAUGHTER BY ACT
With regard to count one involving the victim Michael Longoria Mr
Rangel argues that the lesser-included offense instruction on manslaughter by act was
fundamentally erroneous because it instructed the jury that it could find Mr Rangel
guilty of the lesser-included offense of manslaughter if the State proved that
1 Michael Longoria is dead
2 Francisco Rangel committed an act which was intended to cause the death of Michael Longoria
We find no error fundamental or othenvise because the instruction did
not contain the language Mr Rangel describes Instead paragraph 2 of the instruction
informed the jury that it had to find that Francisco Rangels act(s) caused the death of
Michael Longoria The instruction further informed the jury that [i]n order to convict of
manslaughter by act it is not necessary for the State to prove that the defendant had an
intent to cause death only an intent to commit an act that was not justified or excusable
and which caused death This instruction was not erroneous See State v
Montgomery 39 So 3d 252 259-60 (Fla 2010) ([T]he intent which the State must
prove for 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) We also note that the
written instructions provided to the jury were identical to the oral instructions issued by
the trial judge Accordingly we affirm Mr Rangels judgment and sentence for the
second-degree murder of Michael Longoria
- 3 shy
ll THE INSTRUCTION ON ATTEMPTED MANSLAUGHTER BY ACT
With regard to count two relating to Vidal Quijada the trial court instructed
the jury that to find Mr Rangel guilty of the lesser-included offense of attempted
manslaughter the State was required to prove that Francisco Rangel committed an
act which was intended to cause the death of Vidal Quijada and would have resulted in
the death of Vida Quijada except that someone prevented Francisco Rangel from killing
Vidal Quijada or he failed to do so3 The Supreme Court of Florida has declared that
the issuance of an almost identical instruction constituted fundamental error in Williams
v State 123 So 3d 23 27 (Fla 2013) ([A] trial court commits fundamental error in
giving the standard jury instruction on attempted manslaughter by act where the
defendant is convicted of a crimeno more than one step removed from the improperly
instructed offense) Accordingly we reverse Mr Rangels judgment and sentence for
the attempted murder of Vidal Quijada and remand for a new trial on this count only
111 THE INSTRUCTION ON THE JUSTIFIABLE USE OF DEADLY FORCE
Mr Rangel argues that the jury instruction on justifiable use of deadly
force was fundamentally erroneous The trial courts instruction to the jury on this issue
included the following language
If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be he had no duty to retreat and had the right to stand his ground and meet force with force including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of Attempted Murder or Armed Robbery
(Emphasis added) However section 776013 Florida Statutes (2010) provides
3Again the trial courts oral instruction was identical to the written instruction
- 4 shy
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force includinqmiddotdeadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony
(Emphasis added) Although the standard jury instruction follows the statutory
language it sets off the phrase including deadly force with an additional comma This
court found the use of this language to constitute fundamental error under the
circumstances presented in Talley v State 106 So 3d 1015 (Fla 2d DCA 2013) The
Talley court explained its reasoning as follows
[T]he erroneous comma eliminated Talleys sole defense by suggesting that Talley had no right to defend himself with any force whatsoever unless Mullendore threatened him with deadly force Even if Mullendore attacked Talley with nondeadly force Talley would have the duty to retreat according to this erroneous instruction
at 1017 However the instruction at issue in Talley was Florida Standard Jury
Instruction (Criminal) 36(g) Justifiable Use of Non-Deadly Force which is the
standard self-defense instruction E Talleys only defense was that the alleged victim
John Mullendore had attacked him with nondeadly force and thus Talley was justified in
using nondeadly force in self defense amp at 1016 Accordingly the Talley court held
that the instruction given in that case was erroneous because the justifiable use of
nondeadly force was Talleys only defense and any confusion caused by the instruction
may have deprived Talley of a fair trial because his defense was plausible Jjln at 1018
(emphasis added) The Talley court also noted that the States reliance on the
erroneous instruction in its closing argument supported the conclusion that the error
was fundamental Id at 1017
Although the jury instruction on justifiable use of deadly force Florida
Standard Jury instruction (Criminal) 36(f) also contains the errant comma that caused
the problem in Talley none of the conditions leading to the conclusion that the
instruction was fundamentally erroneous in Talley are present here The first and most
obvious difference is that unlike in Talley Mr Rangel requested and the trial court
instructed the jury on the justifiable use of deadly force not nondeadly force The
facts in this case did not warrant an instruction on nondeadly force because Mr Rangel
unquestionably used deadly force-he shot both victims with a firearm Therefore the
Talley courts concern that the erroneous placement of the comma had the potential to
vitiate Talleys sole defense by causing the jury to think that Talley had no right to
defend himself with any force at all unless he was being threatened with deadly force is
not present here Furthermore because Mr Rangels sole defense was the justifiable
use of deadly force the prosecutors comment in closing that the evidence did not
support a finding that when Mr Rangel fired those shots he was in imminent danger of
death or great bodily harm was a proper comment on the evidence See Merck v
State 975 So 2d 1054 1061 (Fla 2007) (Closing argument is an opportunity for
counsel to review the evidence and to explicate those inferences which may reasonably
be drawn from the evidence)
For these reasons we conclude that even though Florida Jury Instruction
(Criminal) 36(f) contains the same errant comma found in Instruction 36(g) the error in
this instruction is neither fundamental nor harmful where as in this case the
defendants sole defense at trial is the justifiable use of deadly force
IV CONCLUSION
There was no error with respect to the jury instruction on manslaughter or
the jury instruction on justifiable use of deadly force However because the lesser-
included offense of attempted manslaughter was one step removed from the primary
charge upon which the jury found Mr Rangel guilty the instruction on that charge
constituted fundamental error Williams 123 So 3d at 27 Accordingly we reverse Mr
Rangels judgment and sentence on count two of the indictment for the attempted
second-degree murder of Vidal Quijada and remand for a new trial on that count only
In all other respects we affirm Mr Rangels judgments and sentences
Affirmed inpart reversed in part and remanded
ALTENBERND and LaROSE JJ Concur
- 7 shy
ll THE INSTRUCTION ON ATTEMPTED MANSLAUGHTER BY ACT
With regard to count two relating to Vidal Quijada the trial court instructed
the jury that to find Mr Rangel guilty of the lesser-included offense of attempted
manslaughter the State was required to prove that Francisco Rangel committed an
act which was intended to cause the death of Vidal Quijada and would have resulted in
the death of Vida Quijada except that someone prevented Francisco Rangel from killing
Vidal Quijada or he failed to do so3 The Supreme Court of Florida has declared that
the issuance of an almost identical instruction constituted fundamental error in Williams
v State 123 So 3d 23 27 (Fla 2013) ([A] trial court commits fundamental error in
giving the standard jury instruction on attempted manslaughter by act where the
defendant is convicted of a crimeno more than one step removed from the improperly
instructed offense) Accordingly we reverse Mr Rangels judgment and sentence for
the attempted murder of Vidal Quijada and remand for a new trial on this count only
111 THE INSTRUCTION ON THE JUSTIFIABLE USE OF DEADLY FORCE
Mr Rangel argues that the jury instruction on justifiable use of deadly
force was fundamentally erroneous The trial courts instruction to the jury on this issue
included the following language
If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be he had no duty to retreat and had the right to stand his ground and meet force with force including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of Attempted Murder or Armed Robbery
(Emphasis added) However section 776013 Florida Statutes (2010) provides
3Again the trial courts oral instruction was identical to the written instruction
- 4 shy
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force includinqmiddotdeadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony
(Emphasis added) Although the standard jury instruction follows the statutory
language it sets off the phrase including deadly force with an additional comma This
court found the use of this language to constitute fundamental error under the
circumstances presented in Talley v State 106 So 3d 1015 (Fla 2d DCA 2013) The
Talley court explained its reasoning as follows
[T]he erroneous comma eliminated Talleys sole defense by suggesting that Talley had no right to defend himself with any force whatsoever unless Mullendore threatened him with deadly force Even if Mullendore attacked Talley with nondeadly force Talley would have the duty to retreat according to this erroneous instruction
at 1017 However the instruction at issue in Talley was Florida Standard Jury
Instruction (Criminal) 36(g) Justifiable Use of Non-Deadly Force which is the
standard self-defense instruction E Talleys only defense was that the alleged victim
John Mullendore had attacked him with nondeadly force and thus Talley was justified in
using nondeadly force in self defense amp at 1016 Accordingly the Talley court held
that the instruction given in that case was erroneous because the justifiable use of
nondeadly force was Talleys only defense and any confusion caused by the instruction
may have deprived Talley of a fair trial because his defense was plausible Jjln at 1018
(emphasis added) The Talley court also noted that the States reliance on the
erroneous instruction in its closing argument supported the conclusion that the error
was fundamental Id at 1017
Although the jury instruction on justifiable use of deadly force Florida
Standard Jury instruction (Criminal) 36(f) also contains the errant comma that caused
the problem in Talley none of the conditions leading to the conclusion that the
instruction was fundamentally erroneous in Talley are present here The first and most
obvious difference is that unlike in Talley Mr Rangel requested and the trial court
instructed the jury on the justifiable use of deadly force not nondeadly force The
facts in this case did not warrant an instruction on nondeadly force because Mr Rangel
unquestionably used deadly force-he shot both victims with a firearm Therefore the
Talley courts concern that the erroneous placement of the comma had the potential to
vitiate Talleys sole defense by causing the jury to think that Talley had no right to
defend himself with any force at all unless he was being threatened with deadly force is
not present here Furthermore because Mr Rangels sole defense was the justifiable
use of deadly force the prosecutors comment in closing that the evidence did not
support a finding that when Mr Rangel fired those shots he was in imminent danger of
death or great bodily harm was a proper comment on the evidence See Merck v
State 975 So 2d 1054 1061 (Fla 2007) (Closing argument is an opportunity for
counsel to review the evidence and to explicate those inferences which may reasonably
be drawn from the evidence)
For these reasons we conclude that even though Florida Jury Instruction
(Criminal) 36(f) contains the same errant comma found in Instruction 36(g) the error in
this instruction is neither fundamental nor harmful where as in this case the
defendants sole defense at trial is the justifiable use of deadly force
IV CONCLUSION
There was no error with respect to the jury instruction on manslaughter or
the jury instruction on justifiable use of deadly force However because the lesser-
included offense of attempted manslaughter was one step removed from the primary
charge upon which the jury found Mr Rangel guilty the instruction on that charge
constituted fundamental error Williams 123 So 3d at 27 Accordingly we reverse Mr
Rangels judgment and sentence on count two of the indictment for the attempted
second-degree murder of Vidal Quijada and remand for a new trial on that count only
In all other respects we affirm Mr Rangels judgments and sentences
Affirmed inpart reversed in part and remanded
ALTENBERND and LaROSE JJ Concur
- 7 shy
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force includinqmiddotdeadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony
(Emphasis added) Although the standard jury instruction follows the statutory
language it sets off the phrase including deadly force with an additional comma This
court found the use of this language to constitute fundamental error under the
circumstances presented in Talley v State 106 So 3d 1015 (Fla 2d DCA 2013) The
Talley court explained its reasoning as follows
[T]he erroneous comma eliminated Talleys sole defense by suggesting that Talley had no right to defend himself with any force whatsoever unless Mullendore threatened him with deadly force Even if Mullendore attacked Talley with nondeadly force Talley would have the duty to retreat according to this erroneous instruction
at 1017 However the instruction at issue in Talley was Florida Standard Jury
Instruction (Criminal) 36(g) Justifiable Use of Non-Deadly Force which is the
standard self-defense instruction E Talleys only defense was that the alleged victim
John Mullendore had attacked him with nondeadly force and thus Talley was justified in
using nondeadly force in self defense amp at 1016 Accordingly the Talley court held
that the instruction given in that case was erroneous because the justifiable use of
nondeadly force was Talleys only defense and any confusion caused by the instruction
may have deprived Talley of a fair trial because his defense was plausible Jjln at 1018
(emphasis added) The Talley court also noted that the States reliance on the
erroneous instruction in its closing argument supported the conclusion that the error
was fundamental Id at 1017
Although the jury instruction on justifiable use of deadly force Florida
Standard Jury instruction (Criminal) 36(f) also contains the errant comma that caused
the problem in Talley none of the conditions leading to the conclusion that the
instruction was fundamentally erroneous in Talley are present here The first and most
obvious difference is that unlike in Talley Mr Rangel requested and the trial court
instructed the jury on the justifiable use of deadly force not nondeadly force The
facts in this case did not warrant an instruction on nondeadly force because Mr Rangel
unquestionably used deadly force-he shot both victims with a firearm Therefore the
Talley courts concern that the erroneous placement of the comma had the potential to
vitiate Talleys sole defense by causing the jury to think that Talley had no right to
defend himself with any force at all unless he was being threatened with deadly force is
not present here Furthermore because Mr Rangels sole defense was the justifiable
use of deadly force the prosecutors comment in closing that the evidence did not
support a finding that when Mr Rangel fired those shots he was in imminent danger of
death or great bodily harm was a proper comment on the evidence See Merck v
State 975 So 2d 1054 1061 (Fla 2007) (Closing argument is an opportunity for
counsel to review the evidence and to explicate those inferences which may reasonably
be drawn from the evidence)
For these reasons we conclude that even though Florida Jury Instruction
(Criminal) 36(f) contains the same errant comma found in Instruction 36(g) the error in
this instruction is neither fundamental nor harmful where as in this case the
defendants sole defense at trial is the justifiable use of deadly force
IV CONCLUSION
There was no error with respect to the jury instruction on manslaughter or
the jury instruction on justifiable use of deadly force However because the lesser-
included offense of attempted manslaughter was one step removed from the primary
charge upon which the jury found Mr Rangel guilty the instruction on that charge
constituted fundamental error Williams 123 So 3d at 27 Accordingly we reverse Mr
Rangels judgment and sentence on count two of the indictment for the attempted
second-degree murder of Vidal Quijada and remand for a new trial on that count only
In all other respects we affirm Mr Rangels judgments and sentences
Affirmed inpart reversed in part and remanded
ALTENBERND and LaROSE JJ Concur
- 7 shy
was fundamental Id at 1017
Although the jury instruction on justifiable use of deadly force Florida
Standard Jury instruction (Criminal) 36(f) also contains the errant comma that caused
the problem in Talley none of the conditions leading to the conclusion that the
instruction was fundamentally erroneous in Talley are present here The first and most
obvious difference is that unlike in Talley Mr Rangel requested and the trial court
instructed the jury on the justifiable use of deadly force not nondeadly force The
facts in this case did not warrant an instruction on nondeadly force because Mr Rangel
unquestionably used deadly force-he shot both victims with a firearm Therefore the
Talley courts concern that the erroneous placement of the comma had the potential to
vitiate Talleys sole defense by causing the jury to think that Talley had no right to
defend himself with any force at all unless he was being threatened with deadly force is
not present here Furthermore because Mr Rangels sole defense was the justifiable
use of deadly force the prosecutors comment in closing that the evidence did not
support a finding that when Mr Rangel fired those shots he was in imminent danger of
death or great bodily harm was a proper comment on the evidence See Merck v
State 975 So 2d 1054 1061 (Fla 2007) (Closing argument is an opportunity for
counsel to review the evidence and to explicate those inferences which may reasonably
be drawn from the evidence)
For these reasons we conclude that even though Florida Jury Instruction
(Criminal) 36(f) contains the same errant comma found in Instruction 36(g) the error in
this instruction is neither fundamental nor harmful where as in this case the
defendants sole defense at trial is the justifiable use of deadly force
IV CONCLUSION
There was no error with respect to the jury instruction on manslaughter or
the jury instruction on justifiable use of deadly force However because the lesser-
included offense of attempted manslaughter was one step removed from the primary
charge upon which the jury found Mr Rangel guilty the instruction on that charge
constituted fundamental error Williams 123 So 3d at 27 Accordingly we reverse Mr
Rangels judgment and sentence on count two of the indictment for the attempted
second-degree murder of Vidal Quijada and remand for a new trial on that count only
In all other respects we affirm Mr Rangels judgments and sentences
Affirmed inpart reversed in part and remanded
ALTENBERND and LaROSE JJ Concur
- 7 shy
IV CONCLUSION
There was no error with respect to the jury instruction on manslaughter or
the jury instruction on justifiable use of deadly force However because the lesser-
included offense of attempted manslaughter was one step removed from the primary
charge upon which the jury found Mr Rangel guilty the instruction on that charge
constituted fundamental error Williams 123 So 3d at 27 Accordingly we reverse Mr
Rangels judgment and sentence on count two of the indictment for the attempted
second-degree murder of Vidal Quijada and remand for a new trial on that count only
In all other respects we affirm Mr Rangels judgments and sentences
Affirmed inpart reversed in part and remanded
ALTENBERND and LaROSE JJ Concur
- 7 shy
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