Opinion

Lopez v. State

  • 68 So. 3d 332
  • 2011 Fla. App. LEXIS 12646
  • 2011 WL 3516143
Court
District Court of Appeal of Florida
Filed
Aug 12, 2011
Status
Published
Author
Lawson
On the bench
Orfinger, Palmer, Lawson
Cited by
16 cases
Authority
More cited than 10.9%

holding appellate counsel ineffective for failing to argue the trial court committed fundamental error in giving the then-standard jury instruction for manslaughter by act, even though controlling precedent in the district had approved the instruction, when the instruction had been found fundamentally erroneous in another district and conflict between the two districts would have allowed defendant to seek relief in the supreme court

How later courts described this case

  • holding appellate counsel ineffective for failing to argue the trial court committed fundamental error in giving the then-standard jury instruction for manslaughter by act, even though controlling precedent in the district had approved the instruction, when the instruction had been found fundamentally erroneous in another district and conflict between the two districts would have allowed defendant to seek relief in the supreme court
  • holding appellate counsel ineffective for failing to argue trial court committed fundamental error in giving the then-standard jury instruction for manslaughter by act, even though controlling precedent in the district had approved the instruction, when the instruction had been found fundamentally erroneous in another district and conflict between the two districts would have allowed defendant to seek relief in the supreme court
  • acknowledging controlling precedent in this district had approved the instruction

Written by the judges who cited it.

The opinion

LAWSON, J.,

concurring specially.

I reluctantly concur, as I believe that the fundamental error analysis in State v. Montgomery, 39 So.3d 252 (Fla.2010), is flawed — and is needlessly forcing the reversal of perfectly valid second degree murder convictions. See Burton v. State, — So.3d -, 2011 WL 1326258 (Fla. 5th DCA 2011) (Lawson, J., concurring) (explaining why, in my view, an unpreserved error in the instruction one step removed from the crime for which the defendant was convicted should not result in an automatic reversal). We are compounding the problem by extending Montgomery to cases that became final before Montgomery was decided, and where this claimed jury instruction error was never raised as an issue on appeal. Although I agree that this result flows from our prior precedent and from Montgomery itself, if not bound by Montgomery , I would deny relief.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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