NAE GUERRA, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The court held that appellate counsel was ineffective for failing to raise a fundamental error in the jury instruction on burglary.
Petitioner alleged ineffective assistance of appellate counsel for not raising an error in the jury instruction for burglary, which incorrectly stated…
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In this petition alleging ineffective assistance of appellate counsel, petitioner argues that counsel was constitutionally ineffective in failing to raise an error in the jury instruction on the burglary charge. The charge given instructed the jury that as to the third element he should have had a “fully formed conscious intent to commit the crime of burglary ” [e.s.] in the dwelling. In Viveros v. State, 699 So.2d 822, 824 (Fla. 4th DCA 1997) and Puskac v. State, 735 So.2d 522 (Fla. 4th DCA 1999), we have found this instruction fundamental error.
We reject the State’s argument that another part of the instructions emphasized that the jury must find an intent to steal with an unlawful entry. This other part dealt with a separate instruction on the inference to be gleaned from possession of recently stolen property. It did not instruct the jury that an element of the crime that the State had to prove was that the defendant had a fully formed conscious intent to commit the offense of theft at the time he entered the dwelling. Cf. Freeman v. State, 787 So.2d 152 (Fla. 4th DCA 2001) (where jury was properly instructed on issue in other instruction.)
This case is indistinguishable from Bruce v. State, 879 So.2d 686 (Fla. 4th DCA 2004), and Lee v. State, 958 So.2d 521 (Fla. 2d DCA 2007), where petitions were granted under indistinguishable circumstances. As there, we grant the petition, quash the conviction, and remand the case for a new trial on the burglary charge.
Petition granted.
GROSS, C.J., FARMER and MAY, JJ., concur.
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Dean v. State, 124 So. 3d 997 (Fla. 4th DCA 2013)…concedes that the petition filed in this case is well taken and that this court has granted ineffective appellate counsel petitions which raised counsel’s failure to have argued this issue as fundamental error on direct appeal. See Guerra v. State, 10 So. 3d 1164, 1165 (Fla. 4th DCA 2009); Bruce v. State, 879 So. 2d 686, 688 (Fla. 4th DCA 2004); see also Lee v. State, 958 So. 2d 521 (Fla. 2d DCA 2007). As in Guerra, Bruce, and Lee, we determine that granting a new appeal would be redundant. The felony murde…
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Ofelia L. Luis v. Fla. Unemployment Appeals Comm'n, 77 So. 3d 712 (Fla. 3d DCA 2011)…enefits appeal was filed a day late. Based on the findings of fact by the appeals referee at the administrative level, we are obligated to affirm the dismissal of her appeal. Section 443.151(3), Florida Statutes (2010); de la Torre v. Siguanea, LLC, 10 So. 3d 1164 (Fla. 3d DCA 2009). Affirmed.…
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Rostran v. The Fla. Unemployment Appeals Comm'n & Holiday CVS, LLC., 83 So. 3d 844 (Fla. 3d DCA 2011)…ppeal should not be dismissed as untimely, prior to its dismissal of the same. For this reason, we agree with the appel-lees that an evidentiary hearing on the timeliness issue would serve no useful purpose.”); see also de la Torre v. Siguanea, LLC, 10 So. 3d 1164, 1164 (Fla. 3d DCA 2009) (“Because de la Torre does not dispute that her notice of appeal was untimely, we must accept the referee’s finding of untimeliness and affirm the Commission’s order.”); Exposito v. S. Fla. Hotels, Inc., 994 So. 2d 1117, 111…
Authorities Cited
- Viveros v. State, 699 So. 2d 822 (Fla. 4th DCA 1997)
- Freeman v. State, 787 So. 2d 152 (Fla. 4th DCA 2001)
- Puskac v. State, 735 So. 2d 522 (Fla. 4th DCA 1999)
- LEE v. State, 958 So. 2d 521 (Fla. 2d DCA 2007)
- Bruce v. State, 879 So. 2d 686 (Fla. 4th DCA 2004)