ALVIN SHARPE, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Petitioner presents a timely claim of ineffective assistance of appellate counsel. We grant the petition as to the argument concerning the erroneous jury instruction. This disposition renders moot the challenge to the alleged sentencing error.
Petitioner was convicted and sentenced for attempted second-degree murder. After briefing was complete in his appeal, but before this court ruled on the merits of petitioner’s appeal, this court issued its opinion in Montgomery v. State, — So.3d —, 2009 WL 350624 (Fla. 1st DCA 2009), which held that the giving of the standard jury instruction on manslaughter in a case of this nature was fundamental error. The Florida Supreme Court has recently affirmed the decision of this court in State v. Montgomery, 39 So.3d 252, 2010 WL 1372701 (Fla.2010). This case is similar to that of Toby v. State, 29 So.3d 1138 (Fla. 1st DCA 2009). We therefore grant the petition and reverse the conviction and sentence and remand to the trial court for further proceedings. The challenge to the alleged sentencing error is dismissed as moot.
PETITION GRANTED IN PART.
EAHN, ROWE, and MARSTILLER, JJ., concur.
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Hodges v. State, 64 So. 3d 142 (Fla. 5th DCA 2011)…reme Court’s April 2010 Montgomery decision, we are bound to conclude that appellate counsel should have raised the issue at the appellate level before our decision in the appeal was final. See Minnich, — So. 3d-: Bailey, — So. 3d-; Sharpe v. State, 39 So. 3d 342 (Fla. 1st DCA 2010); Asberry v. State, 32 So. 3d 718 (Fla. 1st DCA 2010); Toby v. State, 29 So. 3d 1138 (Fla. 1st DCA 2009). We accordingly grant the writ, vacate the judgment and remand for a new trial. Petition GRANTED; Judgment VACATED; and REMA…
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Hartley v. State, 65 So. 3d 584 (Fla. 1st DCA 2011)…ntal [*585] error. The Florida Supreme Court has approved the decision of this court. See State v. Montgomery, 39 So. 3d 252 (Fla. 2010). The state has responded to this petition and concedes that Hartley is entitled to relief as in Sharpe v. State, 39 So. 3d 342 (Fla. 1st DCA 2010) and Toby v. State, 29 So. 3d 1138 (Fla. 1st DCA 2009). We therefore grant the petition, reverse the murder conviction and sentence, and remand to the trial court for further proceedings. PETITION GRANTED. WETHERELL, MARSTILLE…
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Sims v. State, 78 So. 3d 30 (Fla. 5th DCA 2011)…te counsel should have raised the issue at the appellate level.... ” Hodges, 64 So. 3d at 143 (citing Minnich v. State, — So. 3d-, 2011 WL 265765 (Fla. 1st DCA 2011)); Bailey v. State, — So. 3d -, 2011 WL 265769 (Fla. 1st DCA 2011); Sharpe v. State, 39 So. 3d 342 (Fla. 1st DCA 2010); Asberry v. State, 32 So. 3d 718 (Fla. 1st DCA 2010); Toby v. State, 29 So. 3d 1138 (Fla. 1st DCA 2009). We grant the petition and remand for a new trial on the attempted first-degree murder charge. PETITION GRANTED; REMANDED.…
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- State v. Montgomery, 39 So. 3d 252 (Fla. 2010)
- Toby v. State, 29 So. 3d 1138 (Fla. 1st DCA 2009)