JOSEPH ALLWINE, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Court denied petition for ineffective assistance of appellate counsel where counsel failed to raise as fundamental error the trial court's failure to instruct the jury on section 812.025, Florida Statutes, because the Florida Supreme Court held in Blackmon v. State that such error is not fundamental error requiring a new trial.
The failure to instruct a jury pursuant to section 812.025, Florida Statutes, is not fundamental error requiring a new trial, and therefore appellate counsel was not ineffective for failing to raise it.
[1] A trial court's failure to instruct the jury that it may return a guilty verdict on either theft or dealing in stolen property but not both, as required by section 812.02…
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Join FLexlaw to unlock all legal intelligencePetitioner was convicted of both theft and dealing in stolen property in connection with one scheme or course of conduct. He had previously received r…
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This petition alleged ineffective assistance of appellate counsel in failing to raise, as fundamental error, the trial court’s error in failing to instruct petitioner’s jury, pursuant to section 812.025, Florida Statutes (2004).1
We held this case in abeyance until our supreme court resolved Blackmon v. State, 121 So.3d 535, (Fla. 2013) (holding such error was not fundamental error such that a new trial would be required). The supreme court having resolved the issue in a manner adverse to the petitioner’s position, we hereby deny the petition on the merits.
Petition Denied on the Merits.
DAMOORGIAN, C.J., WARNER and MAY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Blackmon v. State, 121 So. 3d 535 (Fla. 2013)
- Allwine v. State, 978 So. 2d 272 (Fla. 4th DCA 2008)
- Allwine v. State, 42 So. 3d 291 (Fla. 4th DCA 2010)