CHRISTOPHER DEAN, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Christopher Dean petitioned for relief from ineffective assistance of appellate counsel, claiming his appellate counsel failed to raise a fundamental error regarding a circular jury instruction on burglary in his direct appeal. The Florida Fourth District Court of Appeal granted the petition, finding that the burglary instruction was fundamentally flawed and that this error also tainted the felony murder conviction, warranting a new trial or plea negotiations.
Yes, the court granted the petition, finding that appellate counsel was ineffective in failing to raise the circular burglary instruction as fundamental error on direct appeal. The court also determined that because the felony murder conviction required the jury to find a properly committed burglary, and the jury was never properly instructed on burglary elements, the felony murder conviction is also fundamentally flawed.
[1] A jury instruction that defines the offense of burglary as requiring a "fully formed, conscious intent to commit the offense of burglary in that structure" constitutes fu…
[2] Ineffective assistance of appellate counsel can be established by counsel's failure to argue a fundamental error in a jury instruction on direct appeal.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is well settled that the giving of this circular instruction is fundamental error.”
Establishes that the jury instruction requiring 'fully formed, conscious intent to commit the offense of burglary in that structure' constitutes fundamental error under Florida law.
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Join FLexlaw to unlock all legal intelligenceDean was convicted of second-degree felony murder and burglary. The victim was Dean's accomplice in the burglary who was struck and killed by a vehicl…
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Christopher Dean has filed a petition alleging that he received ineffective assistance of appellate counsel in his direct appeal in Dean v. State, 82 So.3d 851 (Fla. 4th DCA 2011), review denied, 81 So.3d 413 (Fla.2012). In Dean, this court affirmed his convictions and sentences for second degree felony murder and burglary. We grant the petition and remand for a new trial or plea negotiations.
The facts are discussed in this court’s opinion on direct appeal. The victim of the murder was Dean’s accomplice in the burglary who was struck and killed by a vehicle driven by the owner of the burglarized home who gave chase after the burglary. Dean claims that his appellate counsel was ineffective in failing to argue fundamental error in the jury instruction for burglary. The jury was instructed that to commit the offense of burglary, defendant was required to have a “fully formed, conscious intent to commit the offense of burglary in that structure.” It is well settled that the giving of this circular instruction is fundamental error. Viveros v. State, 699 So.2d 822, 825 (Fla. 4th DCA 1997); Puskac v. State, 735 So.2d 522, 523 (Fla. 4th DCA 1999). Unlike Freeman v. State, 787 So.2d 152, 153 (Fla. 4th DCA 2001), the court did not instruct the jury properly elsewhere in the instruction for burglary. The written instruction contains the same error.
The State 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 murder conviction in this case is also fundamentally flawed as the jury was required to find that defendant committed or attempted to commit a burglary in order to convict. The jury was never properly instructed as to the elements of burglary, and as a result, the felony murder conviction is also fundamentally flawed. Accordingly, we grant the petition and remand for a new trial or plea negotiations.
Petition granted and remanded for further proceedings.
STEVENSON, TAYLOR and CIKLIN, JJ., concur.
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Dean v. State, 199 So. 3d 932 (Fla. 4th DCA 2016)…cene. Originally, we affirmed the convictions. Dean v. State, 82 So. 3d 851 (Fla. 4th DCA 2011) (Dean I). However, we later granted a petition alleging ineffective assistance of appellate counsel and remanded the case for a new trial. Dean v. State, 124 So. 3d 997 (Fla. 4th DCA 2013). On retrial, the evidence was largely the same as that described in Dean I, 82 So. 3d at 851-52. Appellant was charged with second-degree felony murder in violation of section 782.04(3)(e), Florida Statutes (2014), which states…
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Long v. State, 188 So. 3d 116 (Fla. 1st DCA 2016)…c v. State, 735 So. 2d 522 (Fla. 4th DCA 1999). Our sister courts have also found that counsel’s failure to raise this fundamental error on appeal constitutes ineffective assistance of appellate counsel necessitating a new trial. See Dean v. State, 124 So. 3d 997 (Fla. 4th DCA 2013) (granting petition alleging ineffective assistance of appellate counsel and remanding for a new trial where the jury was instructed that “to commit the offense of burglary, defendant was required to have a ‘fully formed, consciou…
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Dean v. State (Fla. 4th DCA 2020)
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)
- Calhoun v. Garrett, 81 So. 3d 413 (Fla. 2012)
- Dean v. State, 82 So. 3d 851 (Fla. 4th DCA 2011)
- Nae Guerra v. State, 10 So. 3d 1164 (Fla. 4th DCA 2009)