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Ayala v. State4/30/2004
Elpido A. Ayala has filed a petition pursuant to Florida Rule of Appellate Procedure 9.141(c) raising claims of ineffective assistance of appellate counsel. We deny the petition.
In the early morning hours of February 26, 2000, Mr. Ayala had a fight with Raul Yanez. At the time, they were living in the same apartment in Immokalee, Florida. Both men were intoxicated, and Mr. Yanez told an offensive joke. The joke generated an argument, and eventually Mr. Yanez apparently struck Mr. Ayala. One thing led to another and within a few minutes, Mr. Ayala plunged a large knife into Mr. Yanez's chest. Mr. Yanez died in the parking lot of the apartment complex.
The State charged Mr. Ayala with one count of second-degree murder. The information alleged in part that Mr. Ayala "did unlawfully, by an act imminently dangerous to another, and evincing a depraved mind regardless of human life, kill and murder [the victim] ... by stabbing the victim with a knife." The information did not allege that the imminently dangerous act was either a voluntary act or an act of culpable negligence.
At trial, the State focused on the charged offense of second-degree murder. Mr. Ayala's counsel primarily argued self-defense. When the parties and the trial court prepared jury instructions and verdict forms for this case, the State requested *2 that, as the next lesser offense to second-degree murder, the trial court read to the jury the standard manslaughter instruction, which includes an instruction on both voluntary manslaughter and manslaughter by culpable negligence. See Fla. Std. Jury Instr. (Crim.) 7.7. This was a logical request because the schedule of lesser-included offenses in the standard jury instructions lists manslaughter as a category one lesser-included offense. See Fla. Std. Jury Instr. (Crim.) 7.4. Mr. Ayala's counsel did not object to this request. Likewise, the parties agreed to a verdict form that gave the jury the option of finding Mr. Ayala guilty "of the lesser-included offense of manslaughter." The form did not distinguish between voluntary manslaughter and manslaughter by culpable negligence.
During closing arguments, neither the State nor Mr. Ayala's counsel relied to any extent upon the instructions that were about to be given on lesser-included offenses. Nevertheless, the jury returned a verdict convicting Mr. Ayala of the lesser-included offense of manslaughter. The trial court entered judgment on the verdict and imposed a downward departure sentence of 78 months' incarceration.
On appeal, Mr. Ayala's counsel filed a well-written brief that raised two issues on appeal. The brief did not raise any issue concerning these jury instructions or the verdict form. This court affirmed without written opinion. Ayala v. State, 834 So.2d 163 (Fla. 2d DCA 2002) (table decision).
Mr. Ayala has filed a timely petition alleging ineffective assistance of appellate counsel. He argues that his appellate counsel should have raised as error the trial court's "merging of the voluntary and involuntary manslaughter instructions," which he claims was fundamental error under Looney v. State, 756 So.2d 239 (Fla. 2d DCA 2000).
In Looney, this court reviewed a case in which manslaughter was the charged offense. The information alleged manslaughter by act and did not allege manslaughter by culpable negligence. Looney, 756 So.2d at 240. The trial court modified the standard instructions so that the jury received the standard instructions for manslaughter by act and also the definition of culpable negligence. Id. This court held that it was fundamental error to instruct the jury on a variety of manslaughter that had not been included within the information. Id.
Relying on Looney, this court initially granted Mr. Ayala relief in a reported opinion. Ayala v
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