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fundamental error

Posted by John P. Rutkowski | Feb 28, 2018 | 0 Comments

Second degree murder. Jury instructions. Lesser included offenses, Manslaughter by act. Giving of erroneous standard instruction on manslaughter by act, which included element of intent to kill, as lesser included offense of second degree murder constituted fundamental error even though jury was instructed on manslaughter by culpable negligence where there was no evidence from which jury could have concluded that victim was killed due to culpable negligence. Habeas corpus, Appellate counsel was ineffective for failure to bring to court's attention the decision holding that the giving of the improper standard jury instruction was fundamental error. Successive petition for writ of habeas corpus, Doctrine of manifest injustice allows court to rectify its earlier error of denying prior petition for writ of habeas corpus raising same claim of ineffective assistance of appellate counsel. Read Entire Case Below.

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John P. Rutkowski

Mr. Rutkowski has been practicing law for the past twenty-five years. Prior to going to law school Mr. Rutkowski served as a deputy sheriff before retiring to attend law school. Upon graduating law school Mr. Rutkowski served as a prosecutor in Florida before going in to private practice and representing clients in three states.


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John P. Rutkowski, Attorney at Law, firm represents clients in the area of driving under the influence, boating under the influence, Criminal & Civil Traffic Offenses. Contact me today for a free telephone consultation.